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REPORTS OF CASES 



BEFORE 



THE HIGH COURT 



AND 



CIRCUIT COURTS OF JUSTICIARY 
IN SCOTLAND. 

DURING THE TEARS 1861, 1862, 1863, AND 1864. 



BT 

ALEXANDER FORBES IRVINE, 

ADVOCATE. 



VOL. IV. ' 



/ 



; 



EDINBURGH: 

T. & T. CLARK, LAW BOOKSELLERS. 
LONDON: STEVENS & SONS. 

MDCOOLXV. 

1j ■' 



EDINBURGH: R. BYMB * SON, PRINTERS. 
30 Haaovtr Stawl. 



JUDGES 



or THV 



COURT OF JUSTICIARY 

DURING THB PERIOD OP THESE REPORTS- 



LORD JUSTICE-GENERAL. 
1861. Tm Ricwt Honourable DUNCAN MCNEILL. 

LORD JUSTICE-CLERK. 
1868. Thb Right Honourable JOHN INGLIS. 

LORDS COMMISSIONERS OF JUSTICIARY 

1861. JOHN COWAN, LORD COWAN. 

1864. GEORGE DEAS, LORD DEA& 

1866. JAMES CRAUFUED, LORD ARDMILLAN* 

1868. CHARLES NEAVES, LORD NEAVES. 

1863. CHARLES BAILLIE, LORD JERVISWOODE. 

LORD ADVOCATE. 
1860. JAMES MONCREIFF. 

SOLICITORS-GENERAL. 
1866. EDWARD FRANCIS MAITLAND. 
1889. GEORGE YOUNG. 



ADVOCATES-DEPUTE. 
1864. DONALD MACKENZIE. 

1866. DAVID HECTOR. 

1867. FREDERICK LEWIS MAITLAND-HERIOT. 
1869. WILLIAM IVORY. 

1861. ADAM GIFFORD. 

1862. ALEXANDER MONCRIEFF 
1862. GEORGE HUNTER THOMS. 
1862. JAMES ARTHUR CRICHTON. 

CROWN AGENT. 
1869. ANDREW MURRAY Juan. 



INDEX OF NAMES 
IN VOL. IV. 



Anderson v. Blair, High Court, Jan. 14, 1861, Suspension, Page 5 

Anderson, John, High Court, Not. 17, 1863, Theft, 286 

Anderson, Patrick, Glasgow, Oct. 1861, Wilful Fire-raising, 95 

Arnot, Thomas, High Court, June 6, 1864, Murder, 529 

Baxter v. Kennedy, Perth, Sept. 11, 1861, Appeal, 84 

Bennet v. Jones, Dumfries, Sept. 27, 1862, Appeal, 228 

Blair, Anderson v., High Court, Jan. 14, 1861, . Suspension, 5 

Blair v. Mitchell, &c, High Court, July 9, 1854, Appeal, 545 
Brooks, Reuben, and Frederick William Thomas, Glas-> Fal8ehood ^^ Ynud, 132 

gow, Dec. 31, 1861, > 

Brown, Lockie & Co. v., Aberdeen, April 28, 1863, Appeal, 363 

Bryce, George, High Court, May 30 and 31, 1864, Murder, . 506 

Bryson, John, and Others, Glasgow, April 22, 1863, Stouthrief, &c. . 884 

Buchan, Charles, Stirling, May 5, 1863, Culpable Homicide, 392 

Buchan, Donaldson v., High Court, Nov. 18, 1861 Suspension, 109 
Buchanan v. Glasgow Water Works Commissioners, Glas- ) 

gow, Sept. 19, 1862, | A PP e * • 285 

Barns, John, and Others, Perth, April 23, 1863. Night-Poaching, 487 

Burnside, John and Hannah, Jedburgh, Sept. 8, 1863, Theft, &c 440 

Campbell, Mitchell v., High Court, Jan. 5, 1863, Suspension, 257 

Campbell, M'Phai) v., High Court, Mar. 18, 1861, Suspension, 18 

Clark^Alexandrtaa&JaneMackay, Inverness, Sept. 25,? chitt Murder 91 

1861, f ' 

Conpland, Logan v., High Court, Dec. 14, 1863, Suspension, 453 

Conpland, Adam, and William Beattie, Dumfries, April) ^—-j* qtq 

14, 1863, ...... J 

Cowan, William, Ayr, Oct. 1, 1862, . Forgery, . 213 

Craig, Christina, Inverness, May 1, 1862, Child-Murder, 189 

Crocket, Charles, Perth, Sept. 28, 1864, . 1 Fran i u ! ent Conce * lm « nt 

»•*'»• ; of Effects, &c. . 666 

Carrie, Michael, & Others, High Court, Dee. 19, 1864, Mobbing and Rioting, &c. 578 

Davidson, Charles Stewart, and Stephen Francis, High) «^ -, . 2ft2 

Court, Feb. 2, 1863, . . . . ) ' 

Dawson v. M 4 Lennan, High Court, April 2, 1862, Suspension, 357 

Dempster, Dukeof Richmond v., High Court, Jan. 14, 1861, Suspension, , 10 

Docharty, John, Glasgow, April 22, 1861, Theft, &c. 581 

Donaldson v. Buchan, High Court, Nov. 18, 1861, Suspension, 100 

Dougall v. Dykes, High Court, Nov. 18, 1861, . Suspension, 101 

Dunbar, Jupp v., High Court, Mar. 9, 1863, Suspension, 355 
Dudley William, High Court, Feb. 15, 1864, . Culpable Homicide, &c. 468 

Duncan, Elizabeth, and Ann Brechin, Perth, Sept. 29, 1862, Child-Murder 206 

. Duncan, George, High Court, Feb. 29, 1864, Night-Poaching, . 474 

Dykes, Dougall, v., High Court, Nov. 19, 1861, . Suspension, 101 



VI INDEX OF NAMES. 

Edward v. Inverness and Aberdeen Junction Railway.) ...» 

Aberdeen, April 24, 1862, . \ Swpennon, . 196 

Fairweather, James, Higb Court, Dec. 2, 1861, . Forgery, &c. 119 
Farqubar, James, and others, Aberdeen, April, 30, 1801, Mobbing & Rioting, &c. 28 

Ferguson v. Thow, High Court, June SO, 1862, Suspension, 196 

Forsyth v. Thompson, High Court, July 17, 1863, Petition, . 425 

Fraser, Daniel, Glasgow. Sept. 30, 1861, • Murder, . 99 

Galloway v. Somerville, Glasgow, Oct. 5, 1863, . Appeal, 444 

Glasgow Water- Works Commissioners v. Buchanan,) A , «*,. 

Glasgow, Sept. 19, 1862, ... I Appeal ' ' ' W 
Glennie, Alexander, High Court, June 27, 1864, . Theft by Housebreaking, 636 

Graham v. Toddrick, Glasgow, April, 21, 1864, . Suspension, 604 

Granger, Andrew, Perth, Sept. 17, 1868, . Night-Poaching, 432 

Grant, May, Perth, April 18, 1862, Child-Murder, . 183 

Gray v. Mackenzie, High Court, Feb. 24, 1862 Suspension, 166 

Greig v. Jopp, Aberdeen, April 28, 1863, . Appeal, 369 

Harcourt and Priestley v. Low, High Court, Jan. 14,1861, Suspension, . 1 
Hardinge, Henry, and Luanda Edgar or Hardinge,) Falsehood, &c, or 

High Court, Mar. 2, 1868, J Theft, . 347 

Hastie, William, Glasgow, April 23, 1863, . Perjury, 389 

H *^coS?jV«t witr Gwr8e Farker ' High { Cuipawe H ° micide ' m 

Header™, J„h», Perth, Sept. 80, 1862 . } *?£fc£g£ 208 

Hinchy, Michael, High Court, July 18 and 20, 1864, Petition, . 669 

Hinchy, Michael, Perth, Sept 80, 1864, . { *■£££ «™~ m 

Imrie, Henry, Perth, Sept. 18, 1863, . Forgery, . 436 
Inglis, William and Catherine, High Court, June 29,) Fraudulent Conceal- 

1863, ..... > ment of Property, &c. 418 
Inglis, William and Catherine, Glasgow, April 23,) Fraudulent Conceal- 

1863, .....) ment of Property, &c. 887 

Inverness and Aberdeen Junction Railway v. Edward,) _ „ OJP 

Aberdeen, April 24, 1664, . . \ Su.pe«.«oo, . 186 

Jamieson and Others v. Mackay, High Court, Nov. 24, 1863, Suspension, 246 

Johnston, Trainer, v. High Court, Jan. 5, 1863, . Suspension, 264 

Jones, Bennet, v., Dumfries, Sept 27, 1862, Appeal, 228 

Jones, Walker, c, Dumfries, Sept. 27, 1862, Appeal, 234 

Jopp, Greig, »., Aberdeen, April 28, 1863, Appeal, . 369 

Jopp, Tough, v., Aberdeen, April 28, 1863, Appeal, 366 

Jupp v. Dunbar, High Court, March 9, 1863, Suspension, . 366 

Kennedy, Baxter, v., Perth, Sept. 11, 1861, . Appeal, . . 48 

Keith, Baroness, Robertson »., High Court, Jan. 6, 1863, Suspension, . 268 

Langley, Abraham, High Court, June 9, 1862 . Bigamy, . . 190 

Lawson, Wyllie »., Ayr, Sept. 16, 1863, . Appeal, 441 

Law and Turner v. Linton, High Court, Nov. 18, 1861, Suspension, 1#7 

Linton, Law and Turner 9., High Court, Nov. 18, 1861, Suspension, . 107 

Linton, Nicholson v., High Court, Nov. 18, 1861, Suspension, 115 



INDEX OF NAMES. 



Vll 



Logan v. Coupland, High Court, Dec. 14, 1863, . Suspension, 

Lockie ft Co. v. Brown, Aberdeen, April 28, 1863, Appeal, 

Lonie, Robert, Perth, 8ept 29, 1862, Culpable Homicide, 

Lothian, Smith •., High Court, May 21, 1863, Suspension, 

Low, Harconrt and Priestly v., High Court, Jan. 14, 1861, Suspension, 
Lyons, Margaret, or M'Gonigle, Glasgow, April 25, 1864, Bigamy, 

Macdonald v. Young, High Court, Jan. 20, 1862, Suspension, 

Macfarlane, M'Lean v., High Court, Mar. 9, 1863, Suspension, 

Macnamara, Bernard, High Court, Dec. 16, 1861, Assault, 

Macpherson, Angus, & Jn. Stewart, Inverness, Sep. 24, 1861 , Culpable Homicide, 
Mackay, Jamieson, & Others v., High Court, Nov. 24, 1862, Suspension, 
Mackenzie, Gray •., High Court, Feb. 24, 1862, . Suspension, 

MKDreadie v. Murray, High Court, Mar. 22, 1862, Suspension, 

M'Creadie, William, Ayr, Oct. 2, 1862, . Wilful Fire-raising, 

Macdonald, Andrew, High Court, June 1, 1863, . Forgery, &c 

M'Guchrist and Torrance, Murray v., High Court, Dec.) 
18,1863, . . . . / 

M'Kay, Alexander, Inverness, Sept. 24, 1861, Contrav. 1st Vict. c. 66, 

M'Kay James, and John Broadly, Glasgow, Oct 2, 1861, 
M'Kinnon, Angus, High Court, May 26, 1863, . 
M'Kenaie v. Whyte, High Court, Not. 14, 1864, 
M'Leuchlan, Jessie, M 4 Intosh or, Glasgow, Sept. 17, 1862, Murder, 
M'Laughlin v. Douglas & Kidston, High Court, Jan, 

17, 1863, .... 

M'Lean v. Macfarlane, High Court, Mar. 9, 1863, 

M'Lean, Mary, High Court, Dec. 7, 1863, 

MXennan, Dawson v., High Court, April 2, 1863, 

M<Mahon, Jane, or M ( Graw, Glasgow, April 22,^1863, 

Manolatos, Joannia, High Court, April 6, 1864, . 

M'Phail v. Campbell, High Court, Mar. 18, 1861, 

M ( Pheraon, Jane, or Dempster and Others, High Court,) »rwk v c 
Jan. 18, 1862, , * ' 

Melville, Stevenson v. High Court, May 25, 1863, 

Mercer, Rowan *., Ayr May 12, 1863, 

Miller, James, High Court, Nov. 24, 1862, 



Contrav. 1st Vict, 
Theft or Reset, 
Theft, &a 
Suspension, 
Murder, 

1 Suspension, 

Suspension, 
Theft, &c, 
Suspension, 
Theft, &c 
Murder, &c, 
Suspension, 

1 



463 
363 

204 
170 

1 
502 

164 
351 
131 
86 
246 
166 
176 
214 
414 

461 

88 

97 

398 

570 

220 

273 

861 
449 
367 
381 
486 
18 

143 

411 

377 



Milne, Alexander, High Court, Feb. 9, 10, 11, 1863, 
Minty v. Symon, High Court, June 80, 1862, 
Mitchell &c, Blair v., High Court, July 6, 1864, 
Mitchell 9. Campbell, High Court, Jan. 6, 1862, 
Mitchell, Purdie v., Glasgow, Oct. 6, 1863, 
Molyaon, James, Perth, April 18, 1862, . 
Morrison, William, Glasgow, Dec. 28, 1864, 



Murray v. M'Gilchrist and Torrance, High Court, Dec.) « 

in nun i- Suspensii 



18,1863, 

Nellis or NeHlua, John, High Court, May 20, 1861, 
Nicholson v. Linton, High Court, Not. 18, 1861, 
Oates, Mary Miller or, High Court, July 22, 1861, 



Appeal, 
Appeal, 

! Writing and Sending 

Threatening Letters, 238 

Murder, . 301 

Suspension, 198 

Appeal, 645 

Suspension, 257 

Appeal, 447 

Forgery, 180 

Base Coin, 582 

461 



} Returning from 
> Servitude, 
Suspension, 

Plagium, &c. 



Penal 



60 
115 

74 



INDEX OF NAMES. 



{Feloniously having Car- 
nal Connection with a 
Woman while Asleep, 
&c. 
Pattison, Robert, Glasgow, Sept. 26, 1861, . Murder, 

Phillips, Thomas, Glasgow, April 23, 1863, Culpable Homicide, 

Purdie v. Mitchell, Glasgow, Oct. 6, 1853, Appeal, 

Reid, James, and Others, High Court, Dec. 9, 1861, Rape, &c. . 
Richmond, Duke of, v. Dempster, High Court, Jan. 14, 1861, Suspension, 
Rice, Edward, Glasgow, April 21, 1864, . . Rape, &c. . 

Rosa, Sinclair v., Glasgow, April 25, 1863, . Appeal, 

Robertson v. Baroness Keith, High Court, Jan. 5, 1863, Suspension, 
Rowan v. Mercer, Ayr, May 12, 1863, . Appeal, 

Scally or Scolly, Mary, High Court, June 23, 1862, Murder, 

Scott, Young v., High Court, July 4, 1864, . Suspension, 

Simpson, Thomas, Ayr, April 8, 1864, . . t Culpable Neglect of 

) Duty, &c. 
Sinclair, Thomas, and James M<Lymont, Glasgow, April) Housebreaking with In 

> tent to Steal, . 
Appeal, 
Suspension, 
} Attempt to Break Pri- 
) son, &c 



21,1864, 

Sinclair v. Rosa, Glasgow, April 25, 1863, 

Smith v. Lothian, High Court, Mar. 21, 1862, . 

Smith, Robert, Perth, Sept. 17, 1863, 

Snaddon v. Spence, High Court, June 30, 1862, 
Somerville, Galloway v., Glasgow, Oct. 5, 1863, 
Spence, Snaddon v., High Court, June 30, 1662, 
Speid v. Whyte, Perth, Sept 30, 1864, 
Stevenson v. Melville, High Court, May 25, 1863, 
Symon, Minty v., High Court, June 30, 1862, 

Thomson, Forsyth v., High Court, July 17, 1863, 



Appeal, 
Suspension, 
Appeal, 
Appeal, 

non, 



Petition, 



Thompson, William, & Geo. Bryce, Glasgow, April 23, 1861, Stouthrief, &c. 



Thow, Ferguson v., High Court, June 30, 1862, 
Todderick, Graham v., Glasgow, April 21, 1864. 
Tough v. Jopp, Aberdeen, April 28, 1863, 
Trainer v Johnston, High Court, Jan. 5, 1863, 

Tambleson, Samuel, Perth, Sept. 17, 1863, 
Turner, Donald, Glasgow, Sept. 25, 1861, 

Walker, Elizabeth, High Court, Mar. 7, 1864, 
Walker v. Jones, Dumfries, Sept. 27, 1862, 



Suspension, 
Suspension, 
Appeal, 
Suspension, 

> Attempt to Murder by 

> Poison, 
Theft, &c. . 

Murder, 
Appeal, 



Weir, Matthew, & Jacob Hull, Glasgow, April 21, 1864, Base Coin, 

Whyte, Mackenzie v., High Court, Not. 14, 1864, Suspension, 

Whyte, Speid v., Perth, Sept. 80, 1864, . Appeal, 

Wilson, James, and Others, Glasgow, Dec. 23, 1862, Assault, 

Wilson, George, jun., Aberdeen, May 1, 1861, . Forgery, &c 

Wyllie v. Lawson, Ayr, Sept. 16, 1863, Appeal, 

Young, Macdonald v., High Court, Jan. 20, 1862, Suspension, 

Young v. Scott, High Court, July 4, 1864, Suspension, 



227 

94 

385 

447 

124 
10 
403 
390 
268 
377 

195 
541 

490 

499 
890 
170 

434 
200 
444 
200 

584 
411 
198 

425 
47 
196 
504 
366 
264 

426 
93 

484 
234 
495 
570 
584 
255 
49 
441 

154 
541 



REPORTS, Ac. 



HIGH COURT. 

Present, 

The Lord Justice-Clerk, 

Lords Cowan, Deas, Ardmillan, and Neaves. 

William Harcourt and Peter Priestly, Suspenders — John Burnet. 

AGAINST 

William Campbell Low, Respondent — Johnstone. 

Suspension — Statute 2d and 3d Will. IV. c. 68 (Day-Poaching 
Act).— Under the Day- Poaching Act, 2d and 3d Will. IV. c. 68, 
no formal copy of citation is required, if a copy of the deliverance of 
the Justices ordering the party to appear at the time and place spe- 
cified is duly served upon him. 

This was a suspension of a conviction by Justices of No. 1. 
the Peace under the act 2d and 3d Will. IT. c. 68 (com- &priestiy 
monly called the Day-Poaching Act, sections 2, 7, 8, * ,Low * 
11, and 15), following on a petition and complaint at j*^. 14 , 
the instance of the respondent, Procurator-fiscal of the 1861, 
Justice of Peace Courts for the stewartry of Kirkcud- s^ 1 "* 011 - 
bright. Upon the petition, and the oath of Daniel 
M'Gunneas, game-watcher, who deponed to the facts, 
the following deliverance was made : — 

The Justice having considered the foregoing petition and complaint, 
and the oath of the before-designed Daniel M'Gunneas thereto sub- 
joined, of date the 8th day of October current, grants warrant to any 

VOL. IV. A 



2 CASKS BEFORE THE HIGH COURT 

No. 1. of the constables of Court to serve a copy of the said petition and com- 

& Pries? plaint, oath, and of this deliverance, on each of William Harcourt, 

9. Low. Peter Priestly, and James Garrett, complained of, personally, or at 

High Court their usual places of abode, in terms of the statute, and ordains them 

J iR6? 4, *° apP 68 ^ before me, or any one or more of Her Majesty's Justices of 

J — the Peace for the stewartry of Kirkcudbright, within the ordinary 

aspenaon. Q our ^.. room j n Creetown, on Friday the 12th day of October current, 
at 12 o'clock noon, to answer to the charge contained in said com- 
plaint, with certification, and grants warrant to cite witnesses for both 
parties to appear at the same time and place. 

Following this -deliverance was a certificate signed by- 
William M'Gowan, constable, stating that he delivered, 
in presence of one witness, whose signature was also 
adhibited, a just copy of the petition and complaint, 
oath, and deliverance, to each of the parties personally 
apprehended. 

On the defenders being called (12th October 1860), 
William Harcourt and Peter Priestly appeared and ob- 
jected, by an agent, to the Court entertaining the case, on 
the ground that they were not legally convened, be- 
cause the summons in obedience to which they appeared, 
bore to be under the hand of a steward-officer, and not 
of a constable, as required by the Justice's warrant. 
They maintained that the execution adjected to the 
complaint was false, and produced the notice which had 
been served upon them, which was signed s William 
€ M'Gowan, steward-officer/ They also craved, in case 
of the objection not being otherwise sustained, that the 
Court should adjourn to enable them to lead evidence 
upon the point. The Justices repelled the objections, 
and refused to allow the adjournment craved. The de- 
fenders then left the Court, and a proof being then led, 
a conviction was obtained, and the defenders were sen- 
tenced to forfeit one pound sterling each, or imprison- 
ment for a specified period in default of payment. 

The reasons for suspension of the conviction were the 
following : — 

1. The citation of the complainers was contrary to 
law, in respect it was given by a person calling himself 



AND CIRCUIT COURTS OF JUSTICIARY. 3 

steward-officer, whereas it could only be competently aU^oon 
given by a Justice of Peace constable. * P f^ tly 

2. The citation was also illegal, in respect it was made ~ 

before only one witness. Jan. 14. 

3. The proceedings were illegal, in respect the parties '— 

proceeded to take evidence of the complaint, and con- Su8 P enB,on - 
victed the complainers in their absence, without having 

first, as the statute requires, heard proof that the com- 
plaint was duly served in terms of the statute. 

It was admitted in the present discussion that Wil- 
liam M'Gowan was a constable as well as a steward- 
officer, but it was maintained that the citation, being 
'signed by him in his capacity of steward-officer only, was 
void. The case of Gunn v. Procurator-fiscal of Caithness- 
shire, November 24, 1845, Broun, vol. ii. p. 554 (a case 
of assault on a sheriff-officer acting as a constable), was 
relied on. The following references were made in the 
course of the argument, A. S., 8th July 1831 ; Bell's 
Notes to Hume, p. 223 ; M'Kirdy v. M'CaUum, High 
Court, June 25. 1855, Irvine, vol. ii. p. 202 ; Waddett 
v. Romanes, High Court, Mar. 4. 1857, Irvine, vol. ii. 
p. 611. On the objection that the citation was before 
one witness only, the authorities cited were the Act 
1686, c. 4, not repealed by the Justice of Peace Act, 
Barclay's Justice of the Peace, p. 458. 

The respondents contended that the proceedings 
complied with the statute under which the prosecu- 
tion was led ; and also that all question was excluded 
by the 15th section of the statute limiting the mode of 
review. 

The Lord Justice-Clerk. — My Lords, I have found 
no difficulty in forming an opinion in this case, at- 
tending to the precise terms of the Act of Parliament 
on which we must proceed. The Act regulates the mode 
in which parties and witnesses are to be brought before 
the Justices ; in some cases it is by actual apprehen- 
sion, in others they are summoned to appear before the 
Court, and the directions for the mode in which they 



4 CASES BEFORE THE HIGH COURT 

No.i. are summoned to appear are given in the 11th section 
& Priestly of the statute, which provides — € Where any person 

~ w '_ ' shall be charged, on the oath of a credible witness, 

Zn. u.' 6 with any such offence before a Justice of the Peace, 
im ' € the Justice may summon the party charged to appear 
uspensLon. < before himself, or any one or two Justices of the 
' Peace, as the case may require, at any time and place 
' to be named in such summons/ The Justices are 
to issue the writing which in the statute is called a 
summons, and the summons must specify the precise 
time and place at which the party is to appear. The 
statute proceeds to say what shall be done if such 
party do not appear, ' then, upon proof of the due ser- # 

* vice of the summons/ — and it also specifies what is 
a due service of the summons, — ' by delivering a 
' copy thereof to the party, or by delivering such copy 
' at the party's usual place of abode, to some inmate 
' thereat, and explaining the purport thereof to such 
' inmate/ the Justice is entitled to proceed even in 
the absence of the party. Now, if the complainers 
have, in terms of this 11th section of the statute, been 
served with a copy of the summons, the whole of 
their objections must fail. In order to determine this, 
let us look at the proceedings. I think the Justice 
understood very well the kind of writ which he was 
to issue, and which, in the language of the Statute, is 
called the summons. He € grants warrant to any of the 
' constables of Court to serve a copy of the said petition 
' and complaint, oath, and of this deliverance, on each, 
' &c, personally, or at their usual place of abode, in 
' terms of the statute, and ordains them to appear be- 

* fore me, at time and place specified, with certification, 
' &c.' That is not an ordinary warrant of citation, 
such as a Justice of the Peace would issue in an ordin- 
ary proceeding at common law. He ordains them to 
appear at time and place specified. Now, what is the 
duty of the officer of Court ? Unquestionably to com- 
municate this deliverance to the party whom it affects. 



AND CIRCUIT COURTS OP JUSTICIARY. 5 

But what is the mode in which this is to be done ? The No- 1 - 
statute affords the answer. The service is good if it be & Priestly 
proved that the officer delivered a copy of the summons — — — 

Hitrli f!nnrt 

to the party. The question comes then to this : Had the Jan. u. " 
Justices evidence that service of the summons had been 1861 ' t 
given ? They had more formal evidence than necessary, ""P 6081011, 
because they had an execution by their officer, which 
bore, ' This I did by delivering to each, &c., all personally 
c apprehended, a just copy of the said petition and com- 

* plaint, oath, and deliverance, in presence of Thomas 

* Crosbie, residing at Creetown. (Signed) Wm.M'Gowan, 
€ constable, Thomas Crosbie, witness/ There is not a 
word about leaving a just copy citation, simply because 
the statute does not require anything of the kind. 

These particulars being complied with, I think it un- 
necessary to look at this thing called a copy citation. 
The objection to it as such is very narrow, but I do not 
think it necessary to go into that, because the delivery of 
a copy of the summons is all that is required by the sta- 
tute, and that was delivered to the party by a constable. 

The rest of the Court concurred, and the suspension 
was refused, with expenses. 

William C Stewabt, S.S.C. — Scott, Brucjs, ft Glover— Agents. 



Samuel Anderson, Suspender — John Burnet, 

AGAINST 

Robert Blair, Respondent — A. R. Clark. 

Statute 2d Will. IV. c. 34 — Base and Counterfeit Coin — Indict- 
ment—Relevancy. — Objection to the relevancy of an indictment 
for uttering base coin on two occasions within ten days of each other, 
that it did not set forth that the coin uttered on the second occasion 
was different from that uttered on the first — Repelled, after enquiry 
as to the practice of libelling such cases ; but observed by the Court, 
that the form of libelling ought to be made more distinct in future. 



CASES BEFORE THE HIGH COURT 



On 7th September 1860, the suspender was indicted 
on a libel before the Sheriff-Court of Renfrewshire, which 
set forth : 



No. 2. 

Anderson v. 

Blair. 

High Court* 

Jan. 14. 

1861. 

Suspension- Albeit, by an act passed in the second year of the reign of his late 
Majesty, King William the Fourth, chapter thirty-four, entitled, * An 
Act for consolidating and amending the laws against offences relating to 
the coin/ it is enacted, by section 7th of the said Act, ' That if any 
person shall tender, utter, or put off, any false or counterfeit coin, 
resembling, or apparently intended to resemble or pass for, any of 
the King's current gold or silver coin, knowing the same to be false 
or counterfeit, every such offender shall, in England and Ireland, be 
guilty of a misdemeanour, and in Scotland of a crime and offence, 
and being convicted thereof shall be imprisoned for any term not ex- 
ceeding one year ; and if any person shall tender, utter, or put off, 
any false or counterfeit coin resembling, or apparently intended to 
resemble or pass for, any of the King's current gold or silver coin, 
knowing the same to be false or counterfeit, and such person shall, 
at the time of such tendering, uttering, or putting off, have in his 
possession, besides the false or counterfeit coin so tendered, uttered, 
or put off, one or more piece or pieces of false or counterfeit coin re- 
sembling, or apparently intended to resemble or pass for, any of the 
King's current gold or silver coin, or shall, either on the day of such 
tendering, uttering, or putting off, or within the space of ten days 
then next ensuing, tender, utter, or put on^ any more or other false 
or counterfeit coin, resembling, or apparently intended to resemble 
or pass for, any of the King's current gold or silver coin, knowing 
the same to be false or counterfeit, every such offender shall, in Eng- 
land and Ireland, be guilty of a misdemeanour, and in Scotland of a 
crime and offence, and being convicted thereof, shall be imprisoned 
for any term not exceeding two years*:' Tet true it was, and of ve- 
rity, that the said Samuel Anderson [the complainer] was guilty of 
the statutory crimes and offences above libelled, or of one or other of 
them, actor or art and part; in so far as — (1.) on the 15th day of 
August 1860, in or near the public-house or premises situated in or 
near Fore Street, Port-Glasgow," &c, [the complainer] ' did, wickedly 
4 and feloniously, tender, utter, or put off as genuine, a false or coun- 
1 terfeit coin, resembling, or apparently intended to resemble or pass 
( for, a florin piece of the Queen's current silver coin, he knowing the 
' same to be false or counterfeit, by then and there delivering or ten- 
1 dering the same as genuine, to Eliza M'Kay or M'Ninch, wife of 
' the said James M'Ninch, in payment of a glass or thereby of whisky, 
' then and there purchased, or proposed to be purchased by ' [the 
* complainer] : * Likeas — (2.) on the 15th day of August aforesaid, 
1 and being on the day of the tendering, uttering, or putting off of 



AND CIRCUIT COURTS OF JUSTICIARY. 7 

1 the false or counterfeit coin above libelled, or within the space of ten N °- 2a 
4 days then next ensuing, in or near the spirit shop or premises in or v . Blair. 
t near Dockhead Street, in Port-Glasgow/ &c., [the complainer] ' did, jj. K h Court 
wickedly and feloniously, tender, utter, or put off as genuine, a false Jan. 14. 

1 or counterfeit coin resembling, or apparently intended to resemble * 861 * 

4 or pass for, a florin piece of the Queen's current gold or silver coin, Suspenaiun. 

4 he knowing the same to be false or counterfeit, by then and there 

1 delivering or tendering the same as genuine to Mary Wilson or 

' Marks, wife of the said James Marks, in payment of a glass or 

* thereby of ale, then and there purchased or proposed to be pur- 

4 chased' [by the complainer]. 



An objection was stated to the relevancy, that it did 
not set forth that the coin alleged to have been tendered 
on the second occasion was different from the one al- 
leged to have been tendered on the first. The Sheriff 
repelled the objection, and the complainer pleaded not 
guilty. 

The suspender was tried before a jury, and convicted 
on 18th September last, the verdict being in these 
terms: — 

' The jury, by the mouth of their chancellor, unani- 
' mously find the panel guilty of having tendered, ut- 
' tered, and put off, false or counterfeit coin, resembling, 
' or apparently intended to resemble or pass for, the 
i Queen's current gold or silver coin, knowing the same 
' to be counterfeit as libelled.' 

The sentence was one year's imprisonment. 

The suspender presented a bill of suspension and li- 
beration against the sentence, repeating the objection to 
the relevancy. 

The respondent replied, that the form of libel used 
was conform to practice, and that the true meaning of 
it was, that the coin second tendered was different from 
the coin first tendered. 

The Court having appointed the parties to report as 
to the practice, it appeared that, with a very few ex- 
ceptions, the practice had been to libel in the manner 
which the respondent had followed. 



8 CASES BEFORE THE HIGH COURT 

Ande 2 ' ^ e ^° UT ^ Te ^ use ^ the l>ill of suspension and libera- 
«• B'air. tion, judgment being delivered by 

High Court. 
Jan. 14. 

i86i. The Lord Justice-Clerk. — This is a suspension of a 
Suspension, sentence pronounced by the Sheriff-substitute of Ren- 
frewshire, following on the verdict of a jury finding the 
suspender guilty of the charge under the Coining Act 
as libelled in the libel before us. That libel sets out the 
statute in common form, and the portion of the statute 
which is libelled in this way describes two offences. 
The first is, ' if any person shall tender, utter, or put 
' off, any false or counterfeit coin resembling, or appa- 
' rently intended to resemble or pass for, any of the 
' King's current gold or silver coin, knowing the same 
' to be false or counterfeit ;' and the second offence is, 
that if he shall do so, and ' shall, at the time of such 
' tendering, uttering, or putting off, have in his posses- 
€ sion, besides the false or counterfeit coin so tendered, 
' uttered, or put off, one or more pieces of false or coun- 
i terfeit coin resembling, or apparently intended to re- 
' semble or pass for, any of the King's current gold or 
' silver coin, or shall, either on the day of such tender- 
1 ing, uttering, or putting off, or within the space 
' of ten days then next ensuing, tender, utter, or 
€ put off, any more or other false or counterfeit coin re- 
• sembling, or apparently intended to resemble or pass 
€ for, any of the King's current gold or silver coin, 
€ knowing the same to be false and counterfeit/ 

Now, the substance of the difference between the two 
offences which are thus described in the statute seems 
to be this : The one is the simple act of tendering, utter- 
ing, or putting off a false coin, in the guilty knowledge 
of its being false ; and the second is the act of a person 
who, having tendered, uttered, or put off a false or coun- 
terfeit coin, knowing it to be false, proceeds, on the 
same day, or within ten days thereafter, to utter or put 
off other money in the same guilty knowledge. 

The two branches of the minor proposition, dis- 



AND CIRCUIT COURTS OF JUSTICIARY. 9 

tinguished by the figures 1 and 2, apply to these two A nd;^, n 
charges. The first has application to the former, and «• Blair - 
more simple charge, the second to the second charge. H jan?u!** 

The Court have no doubt that, in order to the contra- 1861 - 
vention of that part of the act second libelled, it is ne- Su »P enwon - 
cessary that the coin tendered, uttered, or used on the se- 
cond occasion, should be a different coin from that ten- 
dered, uttered, or used on the previous occasion ; and 
they do not intend to express any doubt that it must[ap- 
pear in the libel that it was a different coin. Because that 
is clearly required by the Act of Parliament. But the 
question is, whether the minor proposition of the libel 
in the second charge does or does not sufficiently indi- 
cate that the coin on the second occasion is different 
from that alleged to have been tendered on the previous 
occasion. 

Now we have, though with great difficulty, come to 
the conclusion that, on a fair reading of the second 
charge in the minor, the coin there mentioned is alleged 
to have been a different coin from the coin mentioned 
in the first branch of the minor proposition. 

But the Court cannot but say, that this is a matter 
of so much importance, and so essential to the relevancy 
of the charge in the second branch of the minor, that it 
should always be very clearly alleged that the coin 
mentioned in the second branch of the minor was a dif- 
ferent coin from the one mentioned in the first branch 
of the minor ; and the difficulty which the Court have 
felt in reading this libel, so as to hold it relevant, will 
prove sufficiently the necessity of being very careful in 
libelling this offence in future. 

The Court have not been unmoved by what has been 
stated to them as to previous practice, and had it not 
been for that practice there might have been more diffi- 
culty in sustaining this libel ; but it is impossible, whe- 
ther looking to the previous practice or not, to say that 
this libel is expressed as clearly as it should have been 
expressed. 



10 CASES BEFORE THE HIGH COURT 

No. 2. While it is the duty of the prosecutor to libel that 

Anderson 

v. Biair. the coin on the second occasion was a different coin from 



High court, the coin on the first occasion, it does not follow that 

Jan. 14. . . 

1861. the prosecutor is bound directly to prove that. The 
Suspension, statute lays on him the burden of allegation ; but the 
burden of proof may be on the other side. Because the 
allegation that the coin on the second occasion was a 
different coin from that on the first occasion, is to some 
extent an allegation of the negative of the proposition 
that the two coins were the same, and whether the pro- 
secutor is or is not bound to prove that negative, is a 
question not entertained or disposed of in the present 
case. 

The result is, that the Court sustain the libel, and re- 
fuse the suspension. 

John Thomson, S.S.C.— John Patten, W.S.,— Agents. 



Present, 

The Lord Justice-General, 

The Lord Justice-Clerk. 

Lords Cowan, Deas, Ardmillan and Neaves. 

The Duke of Richmond, Appellant, — Lord Advocate Moncreiff— 
A. R. Clark. 

against 

Peter Dempster, Respondent, — Eraser — Skelton. 

No. 3 Statute 8th and 9th Vict., c. 26 — Trout Fishing — Landlord 

Duke of and Tenant — An agricultural tenant has no right to fish with 

Richmond ^ for tmA Qr Qther g^ water figll m a 6tream on fcig farm; 

Dempster. and if he do so without permission, he is liable to the penalties of 

High Court contravening the Act 8th and 9th Vict c. 26. 
Jan. 14. 

1861 

r- This was a complaint to the Sheriff of the county of 

Aberdeen, proceeding on the Act 8th and 9th Vict. 



AND CIRCUIT COURTS OF JUSTICIARY. 11 

c. 26, which prevents fishing for trout or other fresh D ^; 3 ; f 
water fish, by nets, in the rivers and waters of Scot- Richmond 

land. 1 Dempster. 

The appellant set forth, that the respondent, his ten- High court. 
ant in the farm of Pitscurry, had been guilty of a con- m\. ' 
travention of the above statute, in so far as, at a parti- SuapennoiL 
cular time mentioned, he had fished for trout or other 
fresh- water fish, by means of nets, in the Deveron, at a 
place where it flowed by or through his farm, he having 
at that time no right, or written permission from the 
proprietor, or other person entitled to give it, to fish 
there with nets ; and the appellant accordingly prayed to 
have the respondent amerced in the statutory penalties. 

The respondent objected to the relevancy of the in- 
dictment, that it was not a contravention of the statute 
for a tenant to fish upon his own farm. 

The Sheriff-substitute sustained the objection, and 
the appellant having appealed to the Circuit Court at 
Aberdeen, the case came before the Lord Justice-Clerk 
and Lord Ivory, when it was remitted to the High 
Court — a minute being lodged by the parties admitting 
that the respondent was tenant in Pitscurry, and the 



1 ' That it shall not be lawful for any person whatsoever, not being 
' the proprietor of the land through or by which any river or water 
4 flows, or on which any loch is wholly or partially situated, or not 
' having a right there to fish for trout or other fresh- water fish, or not 
4 having a written permission from some such proprietor or person en- 
4 titled to fish as aforesaid, at any time after the passing of this Act, 
4 to fish for trout or other fresh-water fish in any such river, water, 
4 or loch in Scotland, with any net of any kind or description ; and if 
4 any person, not being a proprietor, or having right or permission as 
4 aforesaid, shall wilfully take, fish for, or attempt to take, or aid and 
1 assist in taking or fishing for, or attempting to take or fish for, in or 
4 from any such river, water, or loch, any trout or other fresh-water 
1 fish by or with any net of any kind or description, such person shall 
1 forfeit and pay any sum not exceeding £5 for every such offence, 
1 besides forfeiting the trout or fish taken, and also every boat or net 
4 in or by which the same may have been taken or attempted to be 
1 taken, and shall also pay the full expenses of the conviction.' 



12 CASES BEFORE THE HIGH COURT 

No. 3. lease being produced to show that it contained no special 
Richmond provision which could affect the question. 
Dempster. Before the High Court, the Lord Advocate and Clark, 
High court, for the appellant, argued — The right to fish for trout in 
i86i. " a river belonged to the proprietor of the adjacent land, 
Suspension, and a person who might have legally access to the banks, 
did not thereby become entitled to fish for trout — Fer- 
(jusson v. Shirreff, July 18. 1844, 6 D.B.M. 1363. A 
tenant of a farm had right only to the agricultural 
produce of the soil — Stair, ii. 9. 1 ; Erskine, ii. 6. 20. 
Thus he could not kill the game — Hopetoun v. Wight, 
January 17. 1810, F.C. The exception allowed in the 
case of foxes, Colquhoun, M. 4997, and of rabbits, 
Moncrieff v. Arnot, February 13. 1828, 6 S. & D. 530, 
was because they destroyed the agricultural produce — 
Craig, ii. 8. 22. 

Fraser and Skelton, for the respondent — The case is 
one of nicety, and is novel in so far as in former ques- 
tions as to fishing have not been between landlord and 
tenant, but between conterminous proprietors. It is 
necessary to attend particularly to the terms of the 
statute, which is directed, not against those who have 
permission of any sort to fish, but against poachers. If 
we are entitled to fish with rod, then, in so far as re- 
gards the penalties of the statute, we may fish with net 
also. It has no exclusive reference to netting. A ten- 
ant comes under the second exception of the statute. 
We contend — 1. That trout are animals ferie naturae, and 
so are res nuUius ; and, 2. That as between landlord and 
tenant the right of taking fresh-water fish is not one of 
those exclusive rights reserved by law to the landlord; 
if reserved, the reservation must be expressed. These 
propositions are maintained very strongly by the In- 
stitutional writers — Erskine, ii. 1. 10 ; Stair, ii. 3. 69 
and 76 ; Bankton, ii. 1. 7. The same doctrine is 
laid down by Hutcheson, whose work on the office 
of Justice of the Peace was revised by an eminent 
Judge. 



AND CIRCUIT COURTS OF JUSTICIARY. 13 

The Lord Justice-General. — I have heard that very J^/of 
authoritatively contradicted. 1 Richmond 

Skelton. — Any one in full possession of the banks of Dempster. 
a river may take trout. Before the case of Fergusson High Court, 
v. Shirreff this was undoubted. Carmichael, M. 9645 ; iwi." 
Mackenzie v. Rose, May 26. 1830, 8 S. and D. 816, Suspension. 
affirmed in the House of Lords, May 14. 1832, 6 W. 
S., p. 31, and the opinions of the Judges in that case, 
especially of Lord Glenlee. The tenant is in legal oc- 
cupation of the banks of the stream, and is no more a 
trespasser on the water than on the adjoining land. The 
case otFergussonv. Shirreff was said to be contrary to this 
view, and was indeed the only authority to be relied on 
on the other side ; but that case was one as to which 
there was considerable difference of opinion — the deci- 
sion of it was against the authority of Lord Stair. It 
was a civil cause, and so perhaps not of so much autho- 
rity in a criminal prosecution (see observations of Lord 
Justice-Clerk Hope in Porter v. Stewart, Irvine vol. iii. 
p. 57.) But even supposing it to be well decided, it did 
not militate against the argument, because the defender 
there had not full legal possession of the banks — he had 
only a servitude of passage, which must not be enlarged 
or diverted from the precise and special purpose for 
which it exists. 

The Lord Justice-Clerk. — The case of Shirreff was a 
case of a public road, not of a servitude at all. The 
two things are very different. 

Counsel for the Respondent. — As to the cases on the 
game laws, these were special, and the principle on 
which the tenant has in other cases been allowed to kill 
other wild animals is not that they are destructive, for 



1 It is remarkable, however, that in the dedication to Sir Hay 
Campbell of Succoth, the work is described as undertaken at 'his 
4 mggestion and executed under his inspection/ and the pre- 
face refers to the 'regular revisal of the whole work 1 by that 
Judge. 



14 CASES BEFORE THE HIGH COURT 

i^kVof ^ e fl^y kiU wild animals which are not game, and which 
Richmond are not destructive. 

v. 

popster. Lord Deas. — There is a point on the form of the libel. 

B %MLhL L ^ ie s * a ' u * ie m &kes an exemption from penalties in fa- 

*86*- vour of those who have permision to fish in the water, 

Suspension, without specifying fishing by rod, or by net, or by what 

means. Do you think the libel properly negatives that, 

when it says that the respondent had no right to fish 

with net ? 

The Respondent. — No ; the libel should expressly ne- 
gative the exception in the statute — ThibauU v. Gibson, 
12 Meeson and Welsby, p. 88. 

The Appellant. — The statute deals only with fishing 
by net. ' To fish ' standing alone in it, means to fish 
by net. 

At advising — 

The Lord Justice-Clerk said — This case originated 
in a complaint at the instance of the Duke of Richmond, 
addressed to the Sheriff of the county of Aberdeen, 
complaining of a contravention of the statute regarding 
netting for fresh water fish by the other party Peter 
Dempster ; and, upon a consideration of that libel when 
it first came before the Sheriff, he sustained an objection 
to its relevancy. It does not appear from the interlo- 
cutor of the Sheriff upon what ground he proceeded in 
holding the libel to be irrelevant. But the case was 
appealed to the Circuit Court, and when it came before 
Lord Ivory and myself at Aberdeen, it was explained 
to us by the counsel for both parties that the ground 
upon which the Sheriff proceeded was, that it appeared 
upon the face of this libel that the defender was the 
agricultural tenant of the land by or through which the 
stream flowed, in which he was alleged to have fished 
for trout or other fresh-water fish with a net ; and 
that the Sheriff had held that that was sufficient, 
upon the face of the libel, to show that the defender 
could not be guilty of the offence, because he was in the 
occupation of the land as an agricultural tenant. It was 



AND CIRCUIT COURTS OF JUSTICIARY. 15 

represented to us farther, by the counsel for the par- j^ e 5 ^ 

ties, that this was considered to be a question of ge- Richmond 

neral importance, and it was suggested either by them, Dempster. 

or by the Court — I am not at this moment prepared High Court. 

to »y which — that it might be a proper case for cer- i86i. " 

tification to the High Court. Lord Ivory and I felt Suspension 

that it would be improper to certify it to the High 

Court as a case of general importance unless we were 

quite sure that it involved no specialty which would 

take away from its general importance ; and therefore 1 

we desired, before determining upon the course which we 

should follow, to see the lease under which the defender 

held the lands of Pitscurry. That lease was produced, 

and it appeared to us upon reading it, that it did not 

introduce any specialty, and therefore we came to be 

of opinion that the case ought to be certified. The 

lease is not properly here at all, but was laid before 

the Circuit Court for the purpose of satisfying the 

Judges on Circuit that the question was raised in a 

pure form. 
Now, in dealing with it in the manner in which it 

was dealt with by the counsel in debate, the question 

comes to be, whether this libel is relevant or irrelevant. 

It is a libel proceeding upon the 1st section of the Sta- 
tute 8th and 9th Vict. cap. 26, which imposes a penalty 

upon any person who fishes ' for trout or other fresh- 

1 water fish in any river, water, or loch in Scotland with 

' any net of any kind or description ;' but which intro- 
duces in the same clause certain exceptions from that 

general enactment. By virtue of these exceptions, the 

statute does not apply to persons who are in the situa- 
tion either of being the proprietor of land through or 

by which the river or water flows, or in which the loch 

is wholly or partially situated ; and it does not apply to 

any one who has a right there to fish for trout or other 

fresh-water fish, or to any person who has a written 

permission from some such proprietor or person entitled 

to fish as aforesaid. 



16 CASES BEFORE THE HIGH COURT 

D^ke 3 of Now, of course in libelling under this clause of the 

Richmond Act of Parliament, it is quite necessary that the prose- 

Dempster. cutor should negative these exceptions — should well al- 

High court i e g e that they do not apply to or comprehend the de- 

18*61. ' fender. And, accordingly, the first thing to ascertain, 

Suspension, in examining this libel, is, whether the prosecutor has 

complied with that necessary condition of relevancy. 

He has alleged that ' the said Peter Dempster is not the 

€ proprietor of the land through or by which the said 

' water and river of Deveron flows at Pitscurry afore- 

' said, and he has no right there to fish for trout or other 

' fresh- water fish ; nor had he a written permission from 

€ the proprietor or person entitled to fish there for trout 

' or other fresh-water fish with any net of any kind or 

€ description/ 

The Court are of opinion that, in so far as regards 
this part of the libel, it relevantly and well negatives 
the exceptions ; because we read the Act of Parliament 
as applying exclusively to the matter of net-fishing. 
And, therefore, in speaking of proprietors and persons 
having right, it speaks of proprietors as persons who, 
from the very nature of their right as owners of the 
adjacent soil, have a right to fish in any way they 
please, including fishing with the net. In the same 
way, in speaking of a person as having a right to fish, 
who is not proprietor of the land, the statute must be 
held to speak in the same sense of a right to fish 
with nets. In the third place, it seems to follow as a 
necessary consequence, that if persons having right in 
the sense of the statute, means persons having a right 
to fish with net, then a person having permission from 
one having such a right must mean a person having 
permission to fish with net from a person who has a 
right to fish with net. So far, therefore, the libel is 
quite relevant. 

But then it is said that, in a previous part of the libel, 
it is distinctly disclosed that the defender here is the 
agricultural tenant of the land by or through which the 



AND CIRCUIT COUTS OF JUSTICIARY. ] 7 

stream flows in which he is alleged to have fished with ^; 3 ; f 
a net. The statement is this : that he is farmer in Richmond 
Pitscurry — that is, the land through or by which the Dempster. 
stream flows — and that the Duke of Richmond is pro- H j|* c 52 rt 
prietor, and consequently is his landlord in that farm. issi. 

. . Suspension. 

Now, it is perhaps somewhat a matter of inference from 
the words of the libel, that this man is purely an agricul- 
tural tenant ; but, as the case was argued before us upon 
that footing, we are disposed to take it as raising that 
question distinctly and purely, whether the statement 
upon the face of the libel, that the defender is the agri- 
cultural tenant of the land by or through which the 
stream flows, is fatal to the relevancy of the libel, or 
practically contradicts that which is alleged in the libel, 
namely, that he is not within any of the exceptions 
of the Statute. We are of opinion that an agricul- 
tural tenant has not, as such, any right to fish in a 
stream running by or through his farm, with any net of 
any kind or description. And being of that opinion, we 
think it quite unnecessary to go further for ground of 
judgment. Whether an agricultural tenant, as such, 
may have right to angle or not, or to fish in any other 
way for fresh -water fish, is not hujus loci, because the 
Statute deals entirely with net-fishing, and contemplates 
no other kind of fishing. And, therefore, our ground 
of judgment is that an agricultural tenant, as such, 
has no right to fish any stream passing by or through 
his farm with any net of any kind or description. The 
result is, that the Court will recal the interlocutor of 
the Sheriff-substitute, and remit to him to proceed with 
this complaint. 

Clark, for the appellant, moved for expenses. 

The Lord Justice-Clerk. — The Court think, that as 
this complaint was brought to try a general question, 
there should be no expenses. 

The Court pronounced this interlocutor : — 

1 \ith January 1861. — Sustain the appeal : Reverse 
' the judgment complained of : Remit to the Sheriff to 

VOL. IV. B 



18 



CASES BEFORE THE HIGH COURT 



No. 3. 



Duke of € ^ n ^ ^ e oompkin* relevant ; and thereafter to proceed 
Richmond < in the cause as accords of law : Find no expenses due 
Dempster. € to either party.' 

High Court 
Jan. 14. 
1861. Gibson-Craig, Dalzibl and Brodib, W.S. — Hagabt and Stein, W.S. — Agents. 



Suspension. 



March 18. 
1861. 



Present, 

TnE Lord Justice- Clerk. 

Lords Cowan, Deas, Ardmillan, and Neaves. 

Angus M'Phatl, Suspender — W. M. Thomson — J. C. Smith. 



AGAINST 



John Campbell, Respondent — A. R. Clark. 



Suspension — Appeal — Jurisdiction — Statutes 9th Geo. IV., c. 39, 
and 7th and 8th Vict., c. 35 (Salmon-Fisheries). — A suspension 
of a summary conviction under the Statutes 9th Geo. IV., c. 39, 
and 7th and 8th Vict., c. 35, refused, in respect that the suspender 
had neglected to avail himself of the remedy pointed out by the 
Statutes, viz., appeal to the next Circuit Court of Justiciary — the 
Court holding that the objections to the conviction were such as 
could competently be stated only at the Circuit Court. 

No. 4. This was a suspension of a conviction and sentence 
CampbeiL in a prosecution under the Statutes 9th Geo. IV., c. 39, 
High Court, and 7th and 8th Vict., c. 95, passed for the preservation 
M ^86i! 8 " of salmon fisheries in Scotland. The prosecution pro- 
Suspension. ceeded on a petition and complaint to the Sheriff of 
Argyll, at the instance of the respondent, John Camp- 
bell of Possil, with consent and concurrence of Henry 
Nisbet, writer in Tobermory, Procurator-fiscal of Court 
for the public interest. 

The petition narrated the 3d and 9th sections of the 
act of Geo. IV., and the 1st section of the statute of 



AND CIRCUIT COURTS OF JUSTICIARY. 19 

Victoria. It then set forth that the suspender Angus H $J{ v 
MThail and three others named in the complaint, ' did, Camp bell. 
' all and each, or one or more of them, early on the morn- ^Sl^if * 
' ing of the 23d day of June 1860 years, or about that **&>- ' 

_____ ___________ ___^____^_ — __________^^^_^_____ - _____ < _ — _ - _ — _ Suspension. 

1 The Act 9th Geo. IV., c. 39, provides (sect. 3)—' That if any per- 
( son shall, after the expiration of two months from and after the pass- 
4 ing of this Act, trespass in any ground enclosed or unenclosed, or in 
( or upon any river, stream, water-course or estuary, with intent to 
4 kill salmon, grilse, sea-trout, or other fish of the salmon kind, such 

* person shall forfeit, and pay any sum not less than ten shillings, and 
4 not exceeding five pounds.' 

The Act 7th and 8th Vict., c. 95, sect. 1, narrates that doubts were 
entertained whether the provisions of the preceding act were applicable . 
to the sea or sea-shore, and provides — ' That if any person, not having 

* a legal right or permission from the proprietor of the salmon-fishery, 
' shall, from and after the passing of this Act, wilfully take, fish for, 
' or attempt to take, or aid or assist in taking, fishing for, or attempt- 
1 ing to take in or from any river, stream, lake, water, estuary, firth, 
1 sea, loch, creek, bay, or shore of the sea, or in or upon any part of 
4 the sea, within one mile of low water mark in Scotland, any salmon, 
' grilse, sea-trout, whitling, or other fish of the salmon kind, such 
( person shall forfeit and pay a sum not less than ten shillings, and not 
1 exceeding five pounds, for each and every such offence, and shall, if 
( the Sheriff or Justices shall think proper, over and above, forfeit 
' each and every fish so taken, and each and every boat, boat-tackle, 
' net, or other engine used, in taking, fishing for, or attempting to take 
' fish as aforesaid/ 

In regard to the enforcement of penalties under thsee Acts, the Statute 
9th Geo. IV., c. 39, provides (sect. 9) — * That each and every penalty 
' provided by this Act shall go to the informer, and may and shall be 
' recoverable, with expenses, as well before the Sheriff as before the 

* Justices of the Peace of any county as aforesaid, wherein the same 
' may be incurred, or where the offender shall reside, at the instance 
1 of any person or persons, who shall prosecute for the same ; and in 
4 prosecutions for the different penalties imposed by this Act, or any 

* other Act, for the preservation of the salmon -fisheries in Scotland, 

* it shall be lawful for the Sheriff or Justices, before whom any complaint 
' for the recovery thereof may be brought, to proceed in a summary way, 
1 and to grant warrant for bringing the parties complained upon imme- 
1 diately before them, and on proof on oath, by one or more credible 
1 witnesses, or confession of the offence, or other legal evidence, forth- 
1 with to determine and give judgment in such complaint, without 
' any written pleadings or record of evidence, and to grant warrant 



20 CASES BEFORE THE HIGH COURT 

No. 4. s time, wilfully take, fish for, or did attempt to take, or 

Campbell' ' did aid or assist in taking, fishing for, or attempting 

HighCourt. s to take, in or from Lochspelvie, near the mouth of the 

i86i. " € Eiver Lussa, or in or from the mouth of the river 

suspension. ' Lussa, which falls into the sea at Lochspelvie, or 

• in or from the confluence of the said River Lussa 

1 with the sea, all situated in the united parish of Pen- 

' nygown and Torosay, and shire of Argyll, salmon, 

' grilse, sea -trout, whitling, or other fish of the salmon 

' kind, without having a legal right or permission from 

' the proprietor of the salmon fishery, and that by means 

€ of a scringe, or draught, or other net or engine, and 

' an open skiff or fishing-boat, and have all thereby be- 

' come liable to the complainer in a sum not less than 

€ ten shillings, and not exceeding five pounds ; and 

1 ought to forfeit each and every fish so taken, together 

' with the said nets, or other engine, boat, or boat- 

s tackle so used/ 

Warrant was craved to bring the persons complained 
upon immediately before the Sheriff, that he might 
forthwith determine and give judgment in the com- 
plaint, and thereafter grant warrant for recovery of the 
penalties and expenses, by poinding and imprisonment. 
The complaint was signed — ' Henry Nisbet, Pro r . for 
' Pet p . — Concurrence granted — Henry Nisbet, P.F.' 

The persons accused were brought before the Sheriff- 
substitute (Robertson), on the 30th June 1860, and 
after setting forth that the parties had appeared and 
that witnesses had been examined, the record bears — 

' The Sheriff-substitute finds the complaint proved. Therefore finds 
' Duncan M'Tavish, Angus M'Phail, Alexander M'Kinnon, and 
4 Alexander MacRae, the parties complained on, severally liable in 
* the modified penalty of one pound five shillings sterling each, together 

4 for the recovery of all penalties and expenses decerned for, failing 
' payment within fourteen days after conviction, by poinding and im- 
' prisonment, for a period at the discretion of the Sheriff or Justices, 
' not exceeding six months — it being hereby provided that a record 
1 shall be preserved of the charge and of the judgment pronounced.' 



AND CIRCUIT COURTS OF JUSTICIARY. 21 

4 with one pound one shilling Sterling each of expenses, and decerns No. 4. 

4 and convicts accordingly ; and failing payment within fourteen days Campbell. 

4 after this, the date of conviction, grants warrant for recovering the said „. . ^ t 

4 sums by poinding, in common form, also to apprehend and commit March 18. 

4 the said named parties to the prison of Inverary, therein to be de- l861# 

4 tained for the period of twenty days, unless the said several sums be ' 

4 sooner paid or recovered respectively ; and in respect that this is the 

4 first time the parties have been brought up on a charge of con t raven - 

4 ing the Act, and although they have become liable in the forfeiture 

4 of the boat, nets, and fish detained, in consideration of the circum- 

4 stance above stated, the Sheriff-substitute orders the boats and nets 

4 to be delivered to the parties, but not the fish, which forfeits, and ap- 

4 points to be distributed to the poor in the neighbourhood of Kin- 

4 lochspeivie, if possible, if not, orders it to be destroyed. 1 

No proceedings were taken to enforce this sentence 
until after the autumn Circuit Court of Justiciary for 
the district had been held. The suspender was appre- 
hended at Oban on the 24th September, and was im- 
prisoned at Inverary some days afterwards. 

The note of suspension was presented on 10th Oc- 
tober 1860. 

The respondent pleaded that the suspension was in- 
competent, in respect that, under section 9 of the sta- 
tute of George IV., set forth in the complaint, appeal 
should have been taken to the Circuit Court. 1 

The Court, before further answer, appointed the sus- 



1 4 Any person or persons who shall think himself, herself, or 
1 themselves, aggrieved by any judgment of any Sheriff or Jub~ 
' tices, pronounced in any case arising under this Act, or by assess- 
4 ment made under this Act, in Scotland may appeal to the Commis- 
4 sioners of Justiciary, at their next Circuit Court, or where there are 
4 no Circuit Courts, to the High Court of Justiciary at Edinburgh, in 
4 the manner, and by and under the rules, limitations, conditions, and 
4 restrictions contained in the Act passed in the 20th year of the reign 
1 of King George the Second, for taking away and abolishing the he- 
4 ritable jurisdictions in Scotland ; . . . and it shall not be com- 
4 petent to appeal from, or bring the judgments of any Justices or She- 
1 riff, acting under this Act, under review, by advocation or suspen- 
1 won, or by reduction, or in any other way than as hereinbefore pro- 
1 Tided? 



22 CASES BEFORE THE HIGH COURT 

\ *Ph l : pender to lodge a note of the objections to the proceed- 
campbeii. ings. These were stated as follows: 
H M ghC i8 n ' ' *" ^ e "^ance °f the complaint is defective, in re- 
_ I8 ^' ' spect that no interest to prosecute is set forth, and that 
Suspension. ' the complaint is not signed. 

' 2. It was essential to the relevancy and competency 
' of the complaint, that the name of the proprietor of the 
' fishings in question should have been therein set forth. 

' 3. The illegal fishing charged against the suspender 
' not being alleged to have taken place within one mile 
' of low water mark, the complaint was not within the 
' statutes founded on, and no statutory conviction could 
' legally follow thereon. 

' 4. The alternative charges made against the com- 
' plainer which are not relevantly or specifically set forth, 
' did not enable him to prepare a defence ; and the gene- 
' ral finding that the complaint was proved, being a 
' finding upon these alternative charges, is inept. 

' 5. Finding the complaint proved does not exclude 
' the possibility of the complainer's innocence, having in 
' view the terms of the complaint, wherein one or more 
' of four individuals were charged with illegal fishing ; 
' and the judgment ought therefore to be quashed. 

' 6. It was incompetent to combine in the same sen- 
' tence the imposition of the penalties — the warrant for 
' recovering the same with expenses — and the warrant 
' for apprehending and imprisoning the complainer. 

' 7. The sentence complained of is farther objection- 
' able, in respect it bears no date, and also, in respect 
' that it does not specify to whom the penalties and 
' expenses are to be paid, of which the complainer was 
' necessarily ignorant, as no copy of the complaint was 
' ever served on him.' 

(1. 2). In support of the first and second of these ob- 
jections, the suspender contended that the instance was 
insufficient. The interest of Mr Campbell of Possil, 
either as proprietor, or as common informer, ought to 
have been set forth. 



AND CIRCUIT COURTS OP JUSTICIARY. 23 

The Lord Juthce-Clerk. — I never saw the instance m n* 4. 

. . . M'Phail v. 

of a common informer set forth even in prosecutions Campbell. 
under the Night Poaching Act, and it will be very diffi- High court, 
cult to persuade the Court that that is necessary or pro- i86i. ' 
per here. suspension. 

Thomson, for the suspender, — referred to Herbert v. 
Duke of Roxburghe, High Court, Dec. 26, 1855, Irvine, 
vol. ii. p. 346. 

Lord Cowan. — I delivered the judgment of the Court 
in that case, and the question of common informer was 
not involved in it. 

(3). In support of the third objection, the suspender 
contended that the words in the second section of the Act 
of Victoria founded on in the petition, € within one mile 
' of low water/ must be read as applying, not merely to 
the clause immediately preceding it as to fishing in the 
sea, but must be held also to apply to the clause as to 
fishing in any estuary, frith, sea, loch, or creek. The 
confluence of the Lussa and Loch Spelvie might be more 
than two miles broad, and in that case, to fish in the 
middle would not be a contravention of the statute. It 
was further contended, that the complaint described 
Loch Spelvie as being ' in the sea/ 

The Lord Justice-Clerk. — This is an objection to 
description which surely ought to have been taken in 
initio litis. If the Court of Session were to deal as 
strictly with summonses as you propose that Justices of 
the Peace should deal with them, the greater part of 
them would be thrown out. 

Lord Cowan. — If the locus had been clearly out of 
the statute, the case would have been different. 

(4). In support of the fourth objection, the suspender 
argued, that the conviction was too general. The com- 
plaint charged alternatively taking, or attempting to 
take fish. Of which of these was the suspender found 
guilty ? The doing of an act, and the attempting to 
do that act, were perfectly distinct things, and were al- 
ways so regarded by the Court of Justiciary. Had a 



24 CASKS BEFORE THE HIGH COURT 

M»Ph*n» Jury returned a verdict in such terms, no sentence could 

Ca mpbell. have followed on it, as the Judge could not have known 

"au^w 1 *' w bether *° punish for the greater or for the less offence. 

186X - A general conviction on an alternative charge had often 

Suapenaion. b een suspended by the Court of Justiciary. Jones and 

M'Ewan v. Mitchell, High Court, Dec. 23, 1853, Irvine, 

vol. i. p. 334. 

The Lord Justice- Clerk. — In that case, the two 
offences were quite different in their nature. 

The respondent referred also to M'Nab v. Glass, High 
Court, Jan. 22, 1842, Broun, vol. i. p. 41 ; Mains and 
M'Lvllich v. Fraser, High Court, Feb. 6, 1860, Irvine/ 
vol. iii. p. 533. 

The Lord Justice-Clerk. — One of the alternatives in 
the last quoted case was bad. The question is, if there 
be any difference between the alternatives. There can 
be no greater difference between them, than that the 
one is under the statute, and the other not. But is 
there "any such real distinction in the present case ? 

(5). In support of the fifth objection, the suspender ar- 
gued, the conviction was bad, in respect that it did not 
state whether one or more of the accused were convicted. 
In the case of Sharp v. Dykes, High Court, Feb. 18, 
1843, Broun, vol. i. p. 521, a conviction was found bad, 
which found that the accused had endeavoured to force 
from their work two persons f or one or other of them/ 
A fortiori, must there be certainty as to the person con- 
victed. 

(6). On the sixth objection, the suspender argued, that 
there was no authority to imprison, except in default 
of payment ; and until that default was established, the 
magistrate had no jurisdiction. Reid v. Lang, Court of 
Session, Jan. 13, 1859, 21 D. B. M. 1298— a case under 
the Public Houses Act — Lamond v. Baker, Court of 
Session, Feb. 9, 1860, 22 D. B. M. 718. These cafes 
establish the principle that no warrant can be granted 
until the time of payment elapses. 
The Lord Justice-Clerk. — The question turns entirely 



AND CIRCUIT COURTS OF JUSTICIARY. 26 

on the reading of the statute. There are some statutes Ml ^jJ- 
that plainly intend that the two things shall be separate; Campbea. 
but the question is, does not this statute clearly contem- High Court. 
plate their being one ? isii. 

(7). Lastly, the suspender contended, in support of the Suspension. 
7th objection, that itwasnot enough to have the beginning 
of the record dated. The sentence should have borne 
a date, and it ought also to have specified to whom the 
penalty was to be paid. 

Lord Deas. — Whatever may be the force of these ob- 
jections, could you not have taken all of them to the 
Circuit Court ? 

Thomson, for the suspender. — We have been deprived 
of our right to appeal to the Circuit Court, by the re- 
spondent not having enforced the sentence till just at or 
after the Circuit, and thereby leading us to believe that 
he had abandoned the sentence. Further, if the objec- 
tions were good, they went to this, that there was no 
judgment, and the suspender had been imprisoned with- 
out warrant, and, therefore, any thing which he had 
omitted to do, could not form a bar to his complaining 
of the inferior Court having acted illegally. 

The counsel for the respondent was not called on to 
reply. 

Lord Cowan. — It is not necessary to hear a reply in 
this case. There is only one point raised upon which, had 
it been necessary to go into it, I should have liked to 
have heard more, and that is the general question (as 
to which, speaking from memory, 1 do not think there 
is much authority), how far a party, who has not fol- 
lowed the mode granted to him by the statute, can seek 
a remedy elsewhere. The 9th section of the statute de- 
clares that an appeal is competent to the next ensuing 
Circuit Court. Now a Circuit Court occurred after the 
date of this sentence, which was pronounced upon the 
18th of June. According to the statute, therefore, the 
appeal should have been to the Autumn Circuit Court. 
An appeal was either not entered, or not insisted in. 



26 CASES BEFORE THE HIGH COURT 

M'Phal'u. ^he suspender's explanation was, that the judgment was 

c^p** 11 - not enforced till about the circuit time. That would 

jjfc,. is!** on ty have given him the more time to appeal, and I am 

1861 ; not suprised that this sentence should not have been put 

uspensioD. j n f orce ^j| a ft. er ^ e time for appealing had expired. 

As regards the proper grounds of review, I only wish to 
say that, whatever view I might have taken of them in 
judgment, I hold this sentence to have become final, 
and that I cannot now consider them. That it may be 
open to review for objections that go fundamentally to 
the validity of the sentence, I do not mean to deny. 
If there were a radical defect, or a clear excess of juris- 
diction, I do not mean to say that there might not be 
room for a suspension and liberation. But there is no- 
thing in the grounds of objection which have been sta- 
ted which can properly fall under that description. We 
are, therefore, not called upon to consider farther the 
grounds stated ; but I may say, that had they been 
brought before me as Judge of the Circuit Court at In- 
verary, I should have repelled them all. 

Lord Deas. — I am of the same opinion. The only 
objections now insisted in, — the 3d, 4th, 6th, and 7th, — 
are all objections which should have been taken to the 
Circuit Court ; and farther, they are all bad upon their 
merits. Beyond making these two observations, I do 
not think it necessary to say any thing. 

Lord Ardmillan. — I am of the same opinion. I do 
not mean to say that the High Court of Justiciary could 
not interfere in the case of a clear nullity appearing ex 
facie of the proceedings ; or, that if a case of clear il- 
legality or oppression were shown, the party would 
be precluded from appealing. But I say that all the 
grounds here stated are of such a kind, that they should 
have been stated to the Circuit, and I can see no good 
reason why they should not have gone there. I fully 
concur in thinking that they are all bad. 

Lord Neaves. — With one reservation, I agree upon 
both the points that have been stated as to the incom- 



AND CIRCUIT COURTS OF JUSTICIARY. 



petency of our entertaining these objections, and as to M ?ph^ lr 
being satified that they are bad. Campbell. 

A very liberal review is allowed to the Circuit Court, High court. 
and I quite agree that these objections ought to have m\. 
gone there. But I have some difficulty in resting the suspension. 
matter wholly on that point. For should it be made to 
appear to me that a person was in prison on a warrant, 
which, as a warrant, was entirely illegal on the face of 
it, I should hesitate to say that we were not bound to 
liberate him, as not being properly in jail. But what- 
ever the rule may be at common law in the case of a 
sentence of imprisonment for failure to pay a fine, there 
can be nothing so illegal in issuing the warrant for impri- 
sonment at the time the fine is imposed, to be opera- 
tive conditionally upon non-payment, that a statute can- 
not make it legal. The statute seems clearly to have 
authorised the form of process followed. 

The Lord Justice-Clerk. — The statute permits any 
person who is aggrieved by being convicted under it, to 
appeal to the next Circuit Court, without any limita- 
tion or restriction of the grounds of appeal, except this, 
that as there is no provision for a record of the evidence, 
there can be no review on the ground of the sentence 
being contrary to evidence. That is the only limit. 

It follows, then, that a person may appeal, not only 
on the merits, but on any ground which is good in law 
to set aside the conviction — relevancy or competency, 
or want of jurisdiction in the Judge — all these will be 
good grounds of appeal. Now, it is quite true that there 
may thus be grounds of appeal to this Court, which may 
be sustained after a Grcuit Court has elapsed, and the 
statutory remedy has been forfeited ; but the only 
grounds of that kind which I recognise, are those which 
involve excess of jurisdiction, and those which emerge 
after the Circuit Court has been held, as, for instance, if, 
after the Circuit Court has been held, a person has been 
imprisoned in a place which was not a legal prison. All 
other objections are proper for the Circuit Court, and 



28 CASES BEFORE THE HIGH COURT 

M'PhauV ^ or ** on ^- ^ a P erson imprisoned on a warrant 
Campbell, which is open to any objections of the latter class, 

H M ghC i urt * were *° P resen *' a no * e °f liberation, if he could have 
i86i. availed himself of the statutory remedy, and could have 

Suspension, gone to the Circuit Court, I should hold him precluded 
from coming here. In the present case, I think that all 
the objections that have been stated are of the class which 
can be stated only at the Circuit Court, and I agree 
with your Lordships in thinking, that as the coinplainer 
had the opportunity of availing himself of the review 
provided by the statute, and has neglected it, the note 
of suspension must be refused. 

The note of suspension was refused, with expenses. 

Alexander Morrison, S.S.C. — Maclachlan, Iyory, & Rodger, W.S. — Agents. 



ABERDEEN. 



April SO. 
1861 * Judge — Lord Ardmillan. 

Her Majesty's Advocate — W. Ivory A. D. 

AGAINST 

James Fakquhar — Skelton. 
James Strachan — Fordyce. 
Charles Symon — Cowan. 

AND 

David Esson — Bettie. 

James Far- M0BBINQ AND Rl0TINa — ASSAULT— INDICTMENT— RELEVANCY.— Ob- 

quhar and jection to the relevancy of an indictment charging Mobbing and 

0thera » Rioting, as also Assault, repelled. 
Aberdeen. Four panels charged with mobbing and rioting on the occasion of a 
AP 186lf°" w^J election, but acquitted. 

andRioi James Farquhar, James Strachan, Charles Symon, 
'"as^uh 80 ' and David Esson, were indicted and accused, — 



AND CIRCUIT COURTS OF JUSTICIARY. 29 

That albeit, by the laws of this and of every other well-governed No. 5. 
realm, Mobbing and Rioting ; As also Assault, especially when com- Ja T^ Ftt !i* 
mitted to the serious injury of the person, and by a person who has been Others, 
previously convicted of assault, are crimes of an heinous nature and Aberdeen, 
severely punishable : Yet true it is and op verity, that you the said A P ril 30 - 
James Farquhar and James Strachan are, both and each or one or other 



of you, guilty of the said crime of mobbing and rioting, and of the said ^ ^J° t g 
crime of assault, aggravated as aforesaid, or of one or other of the said ing, as also, 
crimes, actors or actor, or art and part ; and you the said Charles Symon AflBau,t ' 
and David Esson are, both and each or one or other of you, guilty of the 
said crime of mobbing and rioting, and of the said crime of assault, 
aggravated by being commited to the serious injury of the person, or of 
one or other of the said crimes, actors or actor, or art and part : In so 
fir as on the 15th day of February 1861, or on one or other of the 
days of that month, or of January immediately preceding, or of March 
immediately following, being the polling day appointed for taking the 
rotes of the electors of the county of Aberdeen for the election of a 
member of the Commons House of Parliament for the said county, a mob 
of riotous and evil-disposed persons, of which you the said James Far- 
quhar, James Strachan, Charles Symon and David Esson, all and each 
or one or more of you, formed a part, did wickedly and feloniously, as- 
semble at or near the Court- House situated in or near the Square, in or 
near Huntly aforesaid, and then used as a polling-place ; as also in or 
near the said Square ; as also in or near Duke Street and Bogie Street, 
both of Huntly aforesaid, or in or near one or more of the places above 
libelled, for the unlawful purpose of assaulting, maltreating, or intimi- 
dating various electors of the said county, and other peaceably dis- 
posed persons, then in or near the places above libelled, or one or 
more of said places, or for some other unlawful purpose to the prose- 
cutor unknown ; and the said mob, or great number of riotous and 
evil-disposed persons, time above libelled and places above libelled, 
or in or near one or more of said places, did, wickedly and feloni- 
ously, conduct themselves in a riotous, tumultuous, and disorderly 
manner, lo the disturbance of the public peace, and the terror and alarm 
of the lieges, anddid assault and maltreat various electors of the said county, 
and other peaceably disposed persons, and severely injure them, or one 
or more of them, in their persons, and put them into a state of terror 
and alarm, and did attack the said Court-House, and the inn or pre- 
mises situated in or near Bogie Street aforesaid, then and now or lately 
occupied by Alexander Grant, innkeeper, then and now or lately residing 
there, and did throw stones and other missiles at the windows of the 
said Court- House and inn or premises, and did break various panes 
of glass of the said windows : In Particular, time above libelled, 
and at or near the said Court- House, and in or near the Square 
■foresaid, or one or other of them, the said mob, or great number of 



30 CASES BEFORE THE HIGH COURT 

No. 5. riotous and evil-disposed persons did, wickedly and feloniously, and 

quhar and "* a " otous ana * tumultuous manner, and to the disturbance of the 

Others, public peace, attack and assault William Leslie, then and now or lately 

Aberdeen, residing at or near Wart Hill, in the parish of Rayne, and shire afore- 

A l86l 3 ° 8a "* » George M'Pherson, now or lately factor for the Duke of Richmond, 

: and then and now or lately residing at Gibstone, in the parish of Huntly 

and Rio* ana * 8n ' re °f Aberdeen ; George Porter, senior, farmer, then and now 
ing, as also, or lately residing at or near Newton Cairney, in the parish of Cairney, 
and shire aforesaid ; George Cooper, farmer, then and now or lately 
residing at or near Wraes, in the parish of Kennethmont, and shire 
aforesaid ; George Gray, farmer, then and now or lately residing at 
or near Midplough, in the parish of Huntly aforesaid ; and James 
Cran, farmer, then and now or lately residing at or near Newseat, in 
the parish of Rhynie, and shire aforesaid, all and each or one or more 
of them electors of the said county, and did with sticks, stones, and 
other missiles, pelt or strike the said William Leslie, George M'Pher- 
son, George Porter, senior, George Cooper, George Gray, and James 
Cran, or one or more of them, on or near the head and face, and other 
parts of their persons, and seize hold of them, and did violently push 
and pull them about, and jostle them, and did violently obstruct them, 
and prevent them from leaving the said Court- House, and did other- 
wise maltreat and abuse them ; and the said mob or great number of 
riotous and evil-disposed persons did also, time above libelled, wickedly 
and feloniously, and in a riotous and tumultuous manner, and to the 
disturbance of the public peace, attack the said Court- House, and did 
shut up or secure a door or gate thereof, or leading into the back court 
or yard thereof, and did throw stones and other missiles at the win- 
dows of the said Court- House, and did break seventeen, or thereby, 
panes of glass of the said windows ; and the said mob or great num- 
ber of riotous and evil-disposed persons did also, time above libelled, 
wickedly and feloniously, and in a riotous and tumultuous manner, 
and to the disturbance of the public peace, attack the said inn or pre- 
mises in or near Bogie Street aforesaid, then and now or lately occu- 
pied by the said Alexander Grant, and did throw stones or other mis- 
siles at the windows thereof, and did break twenty-two, or thereby, 
panes of glass of the said windows ; and the said mob or great num- 
ber of riotous and evil-disposed persons did also, time above libelled, 
at or near the said Court- House, and in or near the Square and Duke 
Street and Bogie Street aforesaid, or in or near one or more of said 
places, wickedly and feloniously, and in a riotous and tumultuous 
manner, and to the disturbance of the public peace, attack and assault 
James Duthie, then and now or lately lieutenant of the City of Aber- 
deen Police ; Charles Reid and James Milne, both then and now or 
lately sergeants in the said City of Aberdeen Police ; John Webster, 
William Hall, William Walker, William Smart, James Watt, Sa- 



AND CIRCUIT COURTS OF JUSTICIARY. 31 

muel Pressly, William Ritchie, Alexander Begg, James Allardyce, No. 5. 
Jonathan Symmers, James Anderson, Daniel Ross, William M'Do- q ™j£ a * J" 
nald, and John Masson, all and each or one or more of them, then Others, 
and now or lately constables in the said City of Aberdeen Police ; Aberdeen. 
James Cran, then and now or lately superintendent of the Aberdeen- A ?g I i 1 30, 
shire County Police ; George M'Gregor, then and now or lately, in- ■ — 
spector of the said Aberdeenshire County Police ; and William Wight, and Riot- 
Alexander Ingram, Donald Findlay, James Dow, William M'Hardy, in & ** ^*°» 
James Tarves, Kenneth M'Lcod, Lewis Cameron, Alexander Banner- 
man Milne, Charles Omas Mascall, and Peter M'Leod, all and each 
or one or more of them then and now or lately constables of the said 
Aberdeenshire County Police, or one or more of the said officers and 
constables of the said City and County Police, who were then and 
there lawfully engaged in the execution of their duty in endeavouring 
to preserve order and the public peace, and to put a stop to the afore- 
said riotous and illegal proceedings, and did surround and press 
against them, and did with their fists strike them, and did, with stones 
and sticks, or other missiles and weapons, pelt and strike them, or 
one or more of them, on the head, shoulders, breast, and back, and other 
parts of their persons, and did otherwise maltreat and abuse them ; 
by all which, or part thereof, the said Charles Reid, Jonathan Sym- 
mers, and Charles Omas Mascall, were, all and each or one or more 
of them, wounded to the serious injury of their persons ; and all this, 
or part thereof the said mob, or great number of riotous and evil- 
disposed persons did in execution of the unlawful purpose above li- 
belled, or in execution of some other unlawful purpose to the prosecu- 
tor unknown, for which they were assembled as aforesaid ; and you 
the said James Farquhar, James Strachan, Charles Symon, and Da- 
vid Esson did, all and each, or one or more of you, form part of the 
said mob or great number of riotous and evil-disposed persons, and 
were all and each or one or more of you present, and actively engaged 
with, and did excite, encourage, aid, and abet the said mob or great 
number of riotous and evil-disposed persons in the said unlawful acts 
of mobbing and rioting and assault above libelled, or part thereof : 
And you the said James Farquhar and James Strachan have each of 
yon been previously convicted of assault. 

Skelton, for the panel Farquhar, objected to the rele- 
vancy of the indictment, in so far as it charged the 
crime of assault, aggravated by previous conviction, in 
respect that there was no statement in the minor pro- 
position applicable to the assault. 

Lord Abdmillan said, — His brother Lord Cowan con- 
curred with him, that there was no charge of assault 



32 CASKS BEFORE THE HIGH COUItT 

No. 5. here, unless the charge of mobbing and rioting was 

James Far- ' ° ° 

quhar and made out. The case put was, that there was a mob of 

-r-^— riotous and evil disposed persons ; that that mob com- 

Aprii so.' mitted assaults ; that the prisoners were present, con- 

i— curring in its proceedings, and therefore guilty of as- 

and Riot- sault. If there was no riot, there could be no assault ; 
in As8auit. ' but that depended on the evidence in the course of the 

trial. 

The Court repelled the objection, and found the libel 

relevant. 

The panels pleaded Not Guilty. 

EVIDENCE FOR THE PROSECUTION. 

William Daniel, Sheriff-Clerk depute of Aberdeenshire, — proved 
the declaration. 

Cross-examined for panels. — ' Joined the mob,' was an expression put 
to all the panels, and answered affirmatively. [The declaration was 
now admitted, subject to explanations given by last witness.] 

George Macgregor, Police Inspector. — I live at Huntly : I have 
been there on duty nine years. I remember the 15th February last. 
It was the polling day in the county. I was on duty at the court- 
house, a polling station, in the square of Huntly. There is a back 
entrance to the court-house, leading down to Duke Street and Bogie 
Street. The court-house is the first floor up stairs. It is about four 
yards from the door of the court-house to where carriages stop. I 
attended on the 15th, and was there before eight o'clock. Ten men 
of the police, Wright, Ingram, Finlay, Dow, M'Hardy, and others, 
were there. Polling commenced at eight. About ten o'clock I went 
out of the court-house. I saw young men and boys throwing things at 
persons going to vote ; snow-balls and oranges. There was a crowd, — 
about 1000 perhaps. They seemed excited, crying * Pelt the Tories.' 
A cry ran through the crowd of this, and they were hissing, and 
making a great noise. I went for the Duke of Richmond's factor, 
and brought him to the square. As he got out of the omnibus, and 
went in, a shower of snow-balls and oranges was thrown after him. 
I went into the court-house, and found Mr Leslie, M. P. there. It 
was ' some time past 10 a. m.' then. I saw the gate at the back shut 
up between eleven and twelve. It was nailed up from the inside of 
the court-yard, which could be reached by another gate. Large trees 
were put up against this gate on the outside. This gate was secure. 
I heard cries, ' Send out the Tory factor,' and ' the Tory laird.' I 
saw Mr Cooper, farmer, Wraes, going from the court-house after vot* 
ing: he was pelted with snow-balls; I rescued him. M'Pherson 



AND CIRCUIT COURTS OF JUSTICIARY. 33 

(factor) asked me to convey Cran away. He wa9 pelted with snow- No. 5. 
balls and oranges ; no eggs that I saw. Cran ran, and I returned. I J*m«» Far- 
saw Mr Leslie try to get out after that. I saw the panel Farquhar others, 
at ' the Gordon Arms,' the hotel of both parties. I saw Farquhar, Aberdeen, 
who hissed and swore at me. I did not see him throw any thing. I April 30. 
can't say I saw the other prisoners there ; but I saw Symon there 



when Mr Leslie was getting away. He pretended to assist me, but M ?^ m *[ 
he prevented me from opening the door of the carriage. Mr M ( Pher- ing, as also, 
son and Mr Leslie did not get away ; there was a dreadful throw- A" 8 * 1 ^*- 
ing of something. The crowd pushed and carried me about. There 
was a great noise as the Tory voters were going out. The Sheriff and 
Fiscal came about four. Then an attempt was made to get Mr Leslie 
oat ; but he did not get out ; things were thrown at that time the 
game as before. I saw no stones. The city police had come. They came 
down in a body ; then another attempt was made to get Mr Leslie into 
the carriage. He got through the crowd and double line of police to 
the carriage, the ' throwing' the same as before, and he got away. 
Mr Stewart, a Justice of Peace, was there : he is a liberal ; he tried 
to help Mr Leslie. Mr Lawson also assisted. I got some blows, one 
with a stone on the forehead : it was cut through the hat, and my fore- 
head bled. I saw Farquhar at the back part of the court-house, and 
afterwards, about four o'clock, he came out of the crowd, and tried to 
get hold of me, but he did not get hold of me. I met Symon, who 
laid hold of me, and tried to drag me out of the line of police, and 
swore at me, and said I had struck him. He took hold of me another 
time, and accused me of striking him. I saw Strachan one time in 
court, and saw him throwing oranges and snow-balls. I saw Esson 
there several times, and did not see him doing any thing ; this all in 
the square. After Mr Leslie got away, seventeen panes of glass were 
broken by the crowd. I went then with the police to the station, 
— about thirty men in all, — we went towards the railway station. 
Then, as we left the court-house, we were attacked with sticks and 
rtones ; some large ones ; several were struck. I was struck on the 
foot We halted and charged back, then proceeded again, and were 
again stoned. Two policemen, Wright and Mascall, were struck. 
After the second charge, Finlay was hurt, and had to leave. The 
crowd did not follow past Bogie bridge. There were panes of glass 
at Grant's inn, Bogie Street, broken. I did not see any of the pri- 
soners doing any thing at that time. I did not see them at all then. 

Cross-examined for the panel Farquhar. — By "missiles" I mean 
snowballs and oranges. There are a few steps of outside stair ; then an 
iaride stair, about six steps of outer stair. A wooden stair goes inside 
up to the Court- House. I said about 1000 was the number. I think 
•o. The population of Huntly is 3000 or 4000. Mr M'Pherson is 
well liked by respectable parties. There is the Duke of Richmond's 
Hall, different from the Court- Hall. Mr Leslie held his meetings in 

VOL. IV. C 



34 CASES BEFORE THE HIGH COURT 

No. 5. the Court-House. I saw the state of the door at the back of the 
quhar and Court- House, the sticks were visible above the door. A notice of the 
Others, poll was put up at its close. I was never at Huntly on an election- 
Aberdeen. d av# i ^ no t 8 ay to Farquhar, ' I'll mark you for that.' There 
1861. wa9 a door at the side of the court-house yard. I did not then say 
Mobbing *° Farquhar, ' I'll mark you.' The gate was broken up after the 
and Riot- Sheriff came. I saw no stones till after we left the court-house. 
^Assault. ' Cross-examined for the panel Strackan. — I saw Strachan with snow- 
balls and oranges in his hand, watching for Tories, and throwing oc- 
casionally. I spoke to him. I saw him last when the Sheriff came. 
I saw him throwing many times. 

Cross-examined for the panel Symon. — Panel said he was a pen- 
sioner, bound to assist me, and he would not be obstructed. This was 
between 12 and 1, not 2 o'clock. I had not struck him. I did not, 
I can swear to it, for I know the man. Panel had an injury on his 
head when he took hold of me. I saw it. All was over by about 
6 o'clock. I saw the crowd pelting voters before and after they voted. 
When Mr Leslie went away, I did not see who was taking charge 
of him. 

William Leslie, M.P. — I was a candidate for the county, and voted 
at Huntly about £ past 10. I went into the court-house by the back 
entrance. It was open, and I came out by the same way in about 
ten minutes. I found the gate then nailed up. The police-constable 
tried to remove the gate. The court was immediately filled. One lad 
came up as if to throw a snowball at me. I told him to desist. I 
turned into the court-room, snow and slush were thrown at me. I saw 
from the windows of the court-house a riotous crowd in the square, mak- 
ing a great noise, and pelting voters. I was prevented from going by 
the 1 1£ train. I tried, with Mr M'Pherson, to catch the 1 o'clock train. 
\f 'Pherson went down the steps, and was showered at with missiles. 
M'Pherson got away. I was prevented from getting into the omni- 
bus. I returned to the court-house. The Sheriff came about 4. He 
and Mr Stewart and Mr LawBon tried to get me away. They offered 
to escort me. It was considered I was safe under their care — the She- 
riff advised me to go. I was swept away by the crowd like a wave. 
Missiles were thrown at that time. I was struck by one stone and 
some snow-balls. I had seen boys gathering stones. I remonstrated 
with the Sheriff, and a larger force of police was got. The crowd was 
then much excited ; they were breaking the windows of the court- 
house. I got away through the line of police into the omnibus. I 
got a blow with something hard. Stones were thrown through the 
windows of the omnibus as large as my fist. I did not go to the sta- 
tion, but I got out of the town, the crowd yelling and throwing. I 
was a stranger in Huntley. 

Cross-examined for the panel Farquhar. — I went to vote for my- 
self, it is common. I found out I was the unpopular candidate at 



AND CIRCUIT COURTS OF JUSTICIARY. 35 

Huntly. No missile was thrown at me before the policeman advised No **- 
me to return ; but as I turned the missiles were thrown at me. It qohar and 
was on returning to the court-house, and after seeing the crowd, that Others. 
I telegraphed for the police. George Mackieis an elector in Huntly. Aberdeen. 
I saw him. He said I might make another attempt to go out by the ^g^ 30 ' 
back-door. I think he offered to go with me. I said I would not go. - ... 
I would go out, dead or alive, by the front door. I thought the crowd and Riot- 
bad an animus against me. I can't say what the crowd said. I had k?'**JJk 0, 
no cuts and no injuries* Nothing I felt next day. The snow-bails, 
oranges, and slush were the principal missiles. M'Pherson was with 
me on one occasion that I tried to get out. I think the numbers were 
69 to 60. 

Re-examined for the Prosecution.— I was kept at Huntly from a 
quarter past 10 to near 5. 

Gross-examined for the panel Strachan. — I thought the crowd were 
acting together. Greater part of the polling was over about 12 o'clock. 
A few about 2 o'clock. 

To the Court. — No Riot Act was read. Stewart and Lawson did 
not seem to have much influence with the crowd. 

George M'Pherson, Factor for the Duke of Richmond. — I went 
to the court-house, and was pelted going in — a perfect shower, but not 
hurt I found Mr Leslie in the court-house. I saw George Porter, 
farmer, with clothes muddy. I was afraid to leave ; then we arranged 
to go together, Porter and I. I went to the carriage— I could not 
get in. I saw a person inside. I was pelted again. I went back 
into the court-house. I saw Porter, who seemed exhausted, but he 
got off. I remained, and I tried to get away with Mr Leslie. I was 
ewept away by the mob past the omnibus, and was much pelted and 
repeatedly struck. I got into a shop. I was much confused. I had 
not been in good health. My forehead was slightly bruised and 
scratched. I saw Dr Wilson in the shop. I saw the panel Strachan 
aa I went into Huntly, and saw him in the square, and then recog- 
nised him. 1 did not see him doing anything. 

Cross-examined for the panel Farquhar. — There is a hall of the 
Duke of Richmond's let as a granary. 

Gborqe Porter. — I polled, and a left the court-house about 9. I 
went back to the court- home between 1 1 and 12. Milne and I went. 
I took charge of Milne to vote. Missiles were thrown as we went in. 
In coming out, I was much pushed and pelted, and was carried round 
the eab by the crowd. I got one kick, I was squeezed a good deal, 
and got a blue eye from something that hit my face. 

George Cooper. — I went to vote for Mr Leslie, but I did not vote. 
I am brother of Mr Leslie's agent, and well known. I left between 
1 and 2. The crowd did press on me, and put me down as I was 
leaving the court-house. I was helped up and got away. My clothes 
were spoiled with mud. 



36 CASES BEFORE THE HIGH COURT 

No. 5. Cross-examined. — I did not fall down. I got a little help, 
quharand George Grey, farmer. — I was at Huntly at the polling. Before 
Others. I got in I was cut in the cheek by something hard thrown at me. 
Aberdeen. They said I was a tory, and I suppose I was. Then I voted. In 

?86i. * coming out again I was pelted, and my hat knocked off. 

Mobbine " J AME8 Cran, farmer. — I polled for Mr Leslie. On my way to the 

and Riot- poll I was pelted with things — oranges and other things, and my hat 

"^flaaqlt knocked oft I got into the court-house about 10. I was near two 

hours in the court-house. I was afraid to go out, and that was why I 

remained. As I left I was pelted. I ran for it, and got off. 

William Lawson, leather-merchant, Gordon Street, Huntly. — I 
am not a voter. I saw the crowd attacking Cooper. I got the crowd 
to desist. I also assisted Mr Leslie. Mr Lawson and Alexander 
Stewart also did so. The first time we were carried away the mob 
crushed and threw missiles. I got some Volunteers I knew to help 
me to aid Mr Leslie. I am a Lieutenant of Volunteers. The crowd 
were attacking the Tory party — the crowd was violent. Towards the 
end of the day there were several hundreds, perhaps about 500. I 
can't say I ever saw stones thrown. 

Cross-examined. — I cannot speak to the number, but there were 
people came from the country in the afternoon. 

Cross-examined for the panel Symon. — Symon is a pensioner— a 
peaceable, well-disposed man. 

To the Court. — Stewart and Lawson took no part in the election, 
holding office under the crown. 

Margaret Brebner. — I take charge of the court-house at Huntly. 
I cleaned it, and there were stones inside which might fill a shovel— 
17 panes were broken. 

James Minto, draper, Huntly. — I saw panels in Huntly. I can't 
speak to seeing them doing anything. 

Alexander Grant, innkeeper, Bogie Street, Huntly. — On polling- 
day, a crowd following the police passed. They smashed 28 panes of 
glass, and 2 mirrors, making a great noise. This was between 4 and 
5 o'clock. The crowd were following the police. It was they that 
broke the windows. 

Lewis Cameron, police-constable on duty at Huntly on 15th Febru- 
ary. — I saw the attack on M'Pherson. Panels Farquhar and Symon 
were there obstructing the voters. Farquhar struck M'Pherson with 
his hand and with hiB foot. I pushed him back. I also saw Farquhar 
throwing something. He was taking an active part. I saw Symon 
also there, taking an active part when M'Pherson and Porter were 
attacked. I got blows that day. I saw all the panels in the crowd. I 
saw Wight struck on the head with a stone. I took him away into a 
shop. 

Cross-examined. — I saw Symon there almost all day. Symon was 
always in front, about the first who attacked any voter. 



AXD CIRCUIT COURTS OP JUSTICIARY. 37 

James Duthie, lieutenant of police. — I went to Huntly with the No. 5. 
Sheriff and Fiscal, 14 constables and 2 sergeants. We went to the J *™^mT 
court-house. In the afternoon we got Mr Leslie oat of court-house. Others. 
The crowd yelled and called * down with him. 1 They seemed deter* Aberdeen, 
mined against him. After he got away, I marched the police down ^i 
to the station. Several police were attacked. Reid's head was cut, — — ; — 
and Summer's also. A great many missiles were thrown. I saw and Riot- 
bits of branches of trees thrown. There were about 30 police,, and ™g» ** *b°> 
they went away in a body. We were pelted a good bit of the way. 
We turned and charged them, then went on again. Some large stones 
were thrown. Symmers was worse struck. Superintendent Cran 
was struck. 

To the Court. — After attempting to get Mr Leslie away, I think 
the mob was dangerous. I saw very few persons disposed to he or- 
derly. It was after that date I thought it an alarming mob. I can't 
say as to persons coming from the country. 

Charles Reid. — I was cut on the head by a missile ; it bled a 
good deal. I was cut through my hat about 4 o'eloek. I was one 
day off work. I saw Symon and Esson. £sson was jostling in front 
of the crowd. Symon was also jostling and yelling. After that 
Symon seized McGregor by the arm. That was immediately after 
I was struck. This was between 4 and 5. I observed a mark of 
blood on his head. 

Jonathan Symmers. — I saw Esson in the crowd using or throwing 
a stick towards the court. 

Watt of the police. — I was struck before that with a stone, and my 
head was bleeding. I saw Strachan in the crowd in Duke Street, and 
be was throwing stones. I saw Esson in Duke Street after the second 
charge by the police. 

Cross-examined. — I can't say I have seen Strachan before. 

Charles Mascall, police-constable. — I went to Huntly. I was 
hart going to the station in Duke Street by a stone on my head, which 
was much hurt — much cut. I was 10 days off duty. 

James Cran, Superintendent of Police. — I went up to Huntly by 
train with the Sheriff. I was hurt by a stone in Duke Street, cut 
through the hat, and wounded me, and another heavy stone on my 
back. I saw a man throw a stone, and he had stones in his coat. I 
gripped him, he had a dozen of stones. Farquhar was the man. 

Cross-examined. — Webster of the city police was by when I saw 
Farquhar. 

James Tarves, police-constable. — I saw Farquhar throwing at 
M'Gregor and M'Pherson, and again throwing at Mr Leslie. I saw 
Strachan throwing repeatedly at M'Pherson, and M ( Gregor, and Les- 
lie. I saw Symon by me drag M'Gregor away. I saw Farquhar 
throw stones twice at the police. Symon, also, two or three times. 
Saw Esson throw stones at the police — good big ones. 



38 CASES BEFORE THE HIGH COURT 

No. 5. Cross-examined. — I knew Esson by his uniform. 

James Far- 
quhar and Re-examined. — That is the man. 

Others- William Wight. — Farquhar threw a stick as Leslie went into the 
Aberdeen, carriage — ne wa8 a ] 80 throwing stones at the police — he struck myself. 
1861. I saw him often — he appeared excited. I saw Strachan throwing 
Mobbing snow-balls and oranges at the Tory voters. I did not see Esson do 
and Riot- anything particular. I saw Symon seize McGregor. I saw Far- 
m Assault*' quhar in Bogie Street throwing stones, not Strachan, Symon, nor Esson 
in Bogie Street I was struck on the back of the head. I was stun- 
ned, and my head sore for some days. 

John Webster, police-constable, — I went down with Lieutenant 
Duthie. I saw Strachan, Symon, and Esson in the crowd. Strachan 
was throwing at the police. I did not see Symon throw. I saw Es- 
son throw a stick at the court wall. I saw Cran lay hold of Fafquhar 
in the street, with stones in his coat. 

Cross-examined for Symon. — I speak of him when Leslie was going, 
and after he was gone. 

James Watt, constable. — I saw Esson throw a staff at me. He 
first struck at me with it, then threw it at me. On my way to the 
station, I saw Esson throwing stones at the police. I saw Symon with 
stones, and throwing them. 

Cross-examined for the panel Esson. — It was a staff like a walking- 
stick that Esson threw at me. 

Cross-examined for the panel Symon. — I am sure of the man with 
the stones in his hand (Symon). 

Alexander B. Milne, constable. — I saw Farquhar. He was throw- 
ing snow-balls. Esson was throwing something also — he was active. 
I saw Symon seize McGregor on our way to the station. Esson threw 
stones. 

Alexander Chalmers, Governor of ike Prison, and James Bisset, 
keeper of the court-house, Aberdeen, proved the convictions for assault. 

The prisoners' declarations were then read. They 
admitted being amongst the mob, but denied having 
thrown any missiles, or otherwise taking part in the 
disturbance. None of them were voters. 

exculpatory evidence for the panel 8TH0N. 

George Wilson, M.D., Huntly. — Panel Symon called about 5 to 
have his head dressed. — He had an injury on the head — it had been 
a hard blow. 

George Fife, labourer, Huntly. — On the polling-day, I saw Symon 
abont 2 o'clock. He sent me with potatoes to his father. I had to 
seek a hurley. I got it in about 2 hours. Symon and I continued to- 
gether from 2 till near 5. Panel threw nothing at any one. Panel 



AND CIRCUIT COURTS OP JUSTICIARY. 39 

at one time was crashed into court, and came out bleeding. Panel No -^ 

went up to M'Gregor, and asked why he had struck him. Symon q U b&r and" 

went to the Fiscal to complain he had been struck. I went home QtbCT *- 

with panel I took Symon to Dr Wilson's. I left Symon about Aberdeen. 

6. When the omnibus was at the door, Symon was trying to keep i^j 

back the crowd, and he said it was his duty to do so. tttv; — 

Mobbing 
Cross-examined. — I saw Leslie go into the 'bus. I did not see and Riot- 

him before. I saw the throwing of snow-balls — just a few, and very "*£» *• * bo » 

quickly done. 

John Asber. — At Huntly election I saw panel Symon, near the 
omnibus, anxious to keep back the crowd ; he was trying to keep them 
back. Symon was pushed forward, and he got a blow on the head. 
I afterwards saw Symon charge M'Gregor with the blow. 

Robert Gibb. — I live in Huntly. I know Symon, who I saw offer 
assistance to the police. After that a police-constable struck Symon. 

Cross-examined. — I was 8 or 10 yards off from Symon. — He was 
pressing back the mob in the front. I thought he was trying to keep 
the crowd back. He is an old soldier, and I saw him endeavouring 
to keep the people back. Symon challenged M'Gregor for striking 
him. He did not touch him to harm him. 

Charles Clark, shoemaker, Huntly. — I saw Symon at Hie polling- 
place. I saw him struck by M'Gregor the constable on the back of 
the head. 

Cross-examined. — I have been convicted of theft once, two years 
ago. 

Alexander Hendrt. — I saw Symon at Huntly before Leslie was 
taken away — he was evidently pressing back the crowd. I saw him 
struck. The crowd pushed him forward, and M'Gregor struck him 
with a baton. I am sure of this. Symon wished to complain of this. 

Cross-examined. — I have known Symon, and have spoken to him. 
I have been convicted of assault and fined. j 

EXCULPATORY EVIDENCE FOR THE PANEL FARQUHAR. 

Robert Smith. — I was in the Square most of the day. I saw Far- 
quhar — never doing anything. 

Cross-examined. — I saw the crowd abusing some people. 

Robert Lamb, flesher, Huntly. — I saw Farquhar there on the poll- 
ing-place. I saw some boys near Beattie's Inn throwing oranges. 
M'Gregor said to Farquhar he would mark hira. I saw Farquhar 
do nothing. 

Cross-examined. — I did nothing. I did not strike Tarves — he never 
told me to be quiet. I was in the crowd from 9 to 1. I did not put 
my hand into the carriage. 

Francis Gordon. — I was at the polling-place, and saw boys throw- 
ing oranges and snow. Farquhar and I were looking on. I saw 



40 CASES BEFORE THE HIGH COURT 

No. 5. M'Gregor, who ordered Farquhar home, and said, • I'll mark you for 
quharand ' ^at, James. 1 I saw Farquhar doing nothing all day. 

° tbera - Cross-examined. — The boys were throwing oranges and snow-balls 

Aberdeen, at boys. 

A i86l 3 ° ^° ^ Court. — It was for refusing to go home that M'Gregor said 

■ZT-rr. — he would mark him. 
Mobbing 
and Riot- Examined for the panel Esson. — Esson was home on furlough. I 

* U aJH a \ B ° f 8aw k ,m &&** on tne P°U* n g» standing apart from the mob. 

Archibald Davidson, Sheriff of Aberdeenshire. — I got a telegram 
about 10 minutes past 1 from Mr Leslie. It was that there was a vio- 
lent riot at Huntly, and that the police there were powerless. I had 
arranged to be able to send city police, and I went with them to Hunt- 
ly. I got a short telegram on the way, and I went on to Huntly. I 
saw the crowd. There seemed to be persons from the country, and I 
think I heard so. I arrived at 17 minutes to 4. 

To the Court. — No one prevented voting after a little time. I 
thought the crowd was of a more formidable character. It was ar- 
ranged that Mr Leslie should be taken away in a carriage of Mr Gor- 
don's party. 

For Esson. — John Grant. I am in the Artillery. Esson is in 
the Artillery. He is here on furlough, so must have a good character. 

The Jury were then addressed by the Counsel for the 
different panels, Rettie, for the panel Esson, contending 
that the mob described in the indictment as assembled 
for the unlawful purpose of obstructing the election, 
really had no existence. The crowd was assembled for 
a lawful purpose, and it appeared by the evidence that 
there was nothing that could be called a mob, until 
about four o'clock, by which time the election was 
over. 

Lord Ardmillan charged the Jury. — He said, there 
was not in the indictment any charge of assault, except 
as part of the' mobbing and rioting, — there is no special 
assault charged against any of the prisoners, apart from 
mobbing and rioting. As to the law of mobbing and 
rioting, it is settled that every person who forms part 
of a mob is responsible for what the mob does ; but a 
crowd may be lawfully assembled, and every person in 
such a crowd is not responsible for all done by the 
crowd. It is only after a mob has assumed a serious 
character, and has given evidence of the purpose for 



I 



AND CIRCUIT COURTS OF JUSTICIARY. 41 

which it is held together, that persons are respon- Jai Jj£ ^ 
aible for remaining in it, and for what the mob does : qa^""* 

© j # ' Others. 

because it is the duty of every well-disposed person to AberdeeD 
quit a mob whenever it becomes dangerous to the pub- April so. 
lie peace. But electors and non-electors are entitled to MobbiDg 
be present in numbers at an election, and to express. andRa ^ 
their feelings, even noisily, cheering and deploring as Assault ' 
the election goes on — but when violence is manifested, 
the assembly is no longer a lawful one ; and from that 
moment, every act the mob does is shared in by every 
person present. The very idea of coercion in an election 
is inconsistent with order, in violation of law, and fatal 
to popular liberty. It was true that in this case no 
person was seriously injured ; yet an election riot is in 
its nature always a serious riot, because it becomes 
necessary to vindicate the purity and freedom of elec- 
tion from any attempt to interfere with the electors in 
the discharge of their privileges. The riot was not a se- 
rious one up to the time of the police arriving, but after 
that, the evidence shewed that the mob was a danger* 
ous one, and alarming to the public peace. It then be- 
came unlawful and unsafe for any one to remain with 
that mob as a part of it, and every one who did so re- 
main after the mob had shown its dangerous character, 
was responsible for the acts of the mob. As to the case 
against each of the accused individually, his Lordship 
pointed out that the testimony of two or three witnesses 
showed that Farquhar, Strachan, and Esson, were not 
only present, but actively engaged in the mob ; as re- 
gards Symon, the evidence was conflicting. Still, the 
case was one pre-eminently for a Jury to decide. 

The Jury unanimously found the libel not proven. 
In respect of which verdict the panels were assoilzied 
simpliciter and dismissed from the bar. 



42 CASES BFORE THE HIGH COURT 

Her Majesty's Advocate — W. Ivory, A.D. 



May]. 
1861. 



AGAINST 



Ac, 



George Wilson, Jun. — Skelton — A. Robertson. 

Forgery — Uttering — Evidence — Malice — Time — Objection to the 
specification of the uttering in a charge of forgery — repelled. 

2. A witness allowed to refresh his memory by reference to a written 
document which had been in his possession uninterruptedly since 
the occurrence in question. 

3. Where, in a charge of forgery, a special defence had been given in 
for the panel, setting forth malice on the part of the principal wit- 
ness — Question, how far back proof of such malice could competently 
be carried. 

No. 6. George Wilson, a Sheriff officer was indicted and ac- 
wi^nfjr. cused : 

Aberdeen. 

May l. That albeit, by the laws of this and of every other well-governed 
l * realm, Forgery ; As also, the wickedly and feloniously Altering and 
Forgery, Vitiating any Receipt for Money or other Writing; As also the 
wickedly and feloniously Using and Uttering, as genuine, any Forged 
or Altered and Vitiated Receipt for Money or other Writing, knowing 
the same to be forged or altered and vitiated, are crimes of an heinous 
nature, and severely punishable : Yet true it is and of verity, that 
you the said George Wilson, junior, are guilty of the said crimes, or 
of one or more of them, actor, or art and part : In so far as, you the 
said George Wilson, junior, having, on or about the 12th day of April 
1851, received from James Duncan innkeeper, then and now or lately 
residing in or near New Pitsligo, in the parish of Tyrie, and shire of 
Aberdeen, a receipt for money or other writing, in the folowing or 
similar terms : — 

* New Pitsligo 12 April 1851. 
• Received from George Wilson Junior Sheriff officer the sum of 
4 Two Pound 1/8 Sterling being amount of Decree V 8 James Gerrie 
4 also his own expenses 5/4 

' James Duncan.' 
'2.1.3 
5 . 4 

'2.6.7/ 



&Q. 



AND CIRCUIT COURTS OP JUSTICIARY. 43 

you the said George Wilson, junior, did, on the 25th day of February No. 6. 
1859, or on one or other of the days of that month, or of January im- w ^^*j P 
mediately preceding, or of March immediately following, in or near — 

the house in or near Turclossie, in the parish of Tyrie aforesaid, then May l. * 
occupied by you, or in or near the house in or near Turclossie afore- ]861 - 
said, then occupied by the said George Wilson, senior, or at some Forgery, 
other time or times and place or places in the shire of Aberdeen to the 
prosecutor unknown, wickedly and feloniously, and without authority 
from the said James Duncan, substitute or cause or procure to be sub- 
stituted, the figure * 6 ' for the figure 1 at the end or the date 1851 
on said receipt or other writing, and did, wickedly and feloniously, 
and without authority from the said James Duncan, write or inseert, 
or cause or procure to be written or inserted, the words and figures 
* also Four Pounds 2/6 for A Lambs a/c & others per statement, 1 at 
the end of said receipt or other writing, and above the signature 
4 James Duncan' thereon, and did, wickedly and feloniously, and 
without authority from the said James Duncan, place or cause or 
procure to be placed, an adhesive draft or receipt stamp over the 
figures 

* 2 . 1 . 3 

* 5.4 



'2.6.7,' 
at the foot of said receipt or other writing, and did, wickedly and fel- 
oniously, and without authority from the said James Duncan, write or 
insert, or cause or procure to be written or inserted, on said draft or 
receipt stamp the figures 

4 2 . I . 3 

4 4 . 2 . 6 



4 6 . 3 . 9,' 
and did, wickediy and feloniously, and without authority from the said 
James Duncan, forge or adhibit, or cause or procure to be forged or 
adhibited, upon the said receipt-stamp, or partly upon the said receipt- 
stamp and partly upon the said receipt or other writing, the letters or 
initials ( J. D.,' intending the same to pass for, and be received as, 
the genuine subscription or initials of the said James Duncan ; and 
all this you did, wickedly and feloniously, for the purpose of making 
it appear that the said receipt or other writing had been granted by 
the said James Duncan, on the 12th day of April 1856, instead of the 
12th day of April 1851, and that the same was a genuine receipt by 
tbe said James Duncan, for the sum of £14, 2s. 6d. in addition to the 
said sums of £2, Is. 3d., and 5s. 4d., or one or other of them ; and 
the said receipt or other writing was thus, wickedly and feloniously, 
forged or altered and vitiated by you : Further, a summons or action 



44 CASES BEFORE THE HIGH COURT 

No. 6. having, on or about the 22d day of December 1858, been raised before 

WUsSn^Jr. the Sheriff Small Debt Court of Aberdeenshire, at Peterhead, at the 

— — - instance of the said James Duncan, as executor of the deceased Lewis 

Aberdeen. ... 

Mayl. Duncan, sometime merchant in New Pitsligo aforesaid, against you 

1861 * the said George Wilson, junior, concluding for payment of certain 
Forgery, sums of money specified in an account annexed to the said summons, 
amounting in all to £5, 4s. 5d. or thereby, alleged to be due by you 
to the said James Duncan, as executor foresaid, and the said action 
haying, on or about the 20th day of January 1 859, been remitted by 
James Skelton, Esquire, sheriff-substitute of Aberdeenshire to the Ordi- 
nary Roll, you the said George Wilson, junior, did, on the 25th day of 
February 1859, or on one or other of the days of that month, or of 
January immediately preceding, or of March immediately following, 
in or near the office or premises situated in or near Lodge Walk, in or 
near Peterhead, then and now or lately occupied by Keith Forbes, 
solicitor, then and now or lately residing in or near Merchant Street, 
in or near Peterhead, or in or near the house in or near Merchant 
Street aforesaid, then and now or lately occupied by the said Keith 
Forbes, or at some other place in or near Peterhead, or in the shire of 
Aberdeen, to the prosecutor unknown, wickedly and feloniously use 
and utter, as genuine, the said forged or altered and vitiated receipt 
or other writing, by delivering the same, or causing or procuring the 
same to be delivered, to the said Keith Forbes, for the purpose of his 
preparing, and lodging in process, defences for you to the said action, 
founded upon the said forged or altered and vitiated receipt or other 
writing as genuine, and of his lodging the said last-mentioned receipt 
or other writing in process to support your said defences : Further, 
the said Keith Forbes having declined to prepare defences for you to 
the said action, founded upon the said forged or altered and vitiated 
receipt as genuine, and having returned to you the said forged or 
altered and vitiated receipt, you the said George Wilson, junior, did, 
on the 14th day of April 1859, or on one or other of the days of that 
month, or of March immediately preceding, or of May immediately 
following, in or near the house or office or other premises situated in 
or near Jamaica Street, in or near Peterhead, then and now or lately 
occupied by William Gamack, solicitor, then and now or lately resid- 
ing in or near Jamaica Street aforesaid, or at some other place in or 
near Peterhead, or in the shire of Aberdeen, to the prosecutor unknown, 
wickedly and feloniously, again use and utter, as genuine, the said 
forged or altered or vitiated receipt or other writing, by delivering 
the same, or causing or procuring the same to be delivered, to the 
said William Gamack, for the purpose of his preparing, and lodging 
in process, defences for you to the said action, founded upon the said 
forged or altered and vitiated receipt or other writing as genuine, and 
of his lodging the said last-mentioned receipt or other writing in pro- 



Ac 



AND CIRCUIT COURTS OF JUSTICIARY. 45 

cess, to support your said defences: Further, the said William No. 6. 
Gamack having prepared defences for you to the said action, founded ^-^[^jy 

upon the said forged or altered and vitiated receipt as genuine, you 

the said George Wilson, junior, did, on the 12th day of May 1859, M&yl. 
or on one or other of the days of that month, or of April immediately _ ltt6 1, 
preceding, or of June immediately following, in or near the office or Forgery, 
premises situated in or near the Town-House of Peterhead, and then 
and now or lately occupied by Robert Maitland, then and now or 
lately Bheriff-clerk-depute of Aberdeenshire, wickedly and feloniously, 
again use and utter, as genuine, the said forged or altered or vitiated 
receipt or other writing, by lodging the same, or causing or procuring 
the said William Gamack, or some other person to the prosecutor un- 
known, to lodge the same, along with said defences, in the hands of 
the said Robert Maitland, or some other person to the prosecutor un- 
known, as a production in process in said action to support your said 
defences, and as a genuine receipt by the said James Duncan, for the 
aaid sum of £4, 2s. 6d«, in addition to the said sums' of £2, Is. 3d. 
and 5s. 4d., or one or other of them, for the purpose of founding on the 
same, or causing the same to be founded on, in support of your de- 
fences to said action; and the said forged or altered and vitiated 
receipt or other writing was thereafter founded on, or caused to be 
founded on, by you, in support of your defences to said action accord- 
ingly. 

Skelton and Robertson, for the panel, objected to 
the relevancy of the indictment, that, as regarded the 
first charge, the mere fact of giving the receipt to an 
agent and getting it back, could not constitute an act 
of uttering. The document had never been lodged in 
process. 

Lord Cowan said, this was just a part of the history 
of the case, and must stand or fall with the charge of 
uttering through Gamack. If that charge was not proved, 
then this could not be looked to, but the prosecutor 
was entitled to prove it as part of the narrative of the 
case. 

The relevancy of the indictment having been sus- 
tained, the panel pleaded not guilty, and a special de- 
fence was given in for him, to the effect that Duncan 
had, out of ill will, falsely and maliciously represented 
that the genuine receipt had been altered by the panel. 

In the course of the examination of James Duncan 



46 CASES BEFORE THE HIGH COURT 

No. 6. the witness produced from his pocket-book a copy of 

wiiaonfjr. the receipt. He deponed, ' I got this copy from the 

Aberdeen. c prisoner at the date, 12th April 1851. It is a copy 

]86i." € of the receipt subsequently altered. It has remained 

Forgery, ' in my possession ever since. I never showed it to 

' any one. 

Counsel for the panel objected — This document could 
not be used or referred to, as it was not founded on and 
included in the inventory. 

The Court were of opinion that the witness, having 
sworn that this was a document which he got into his 
possession at the time, and which had remained in his 
possession ever since, was entitled to use it to refresh 
his memory. 

In cross-examination, it was proposed to ask the wit- 
ness specific questions as to whether he made certain 
statements to different persons against the panel, the 
questions referring to periods varying from a day to a 
month. 

It was objected for the prosecution, that under the 
act 15th and 16th Vict. c. 27, sect. 3, it was competent 
to ask such questions only in regard to a specific occasion. 

The counsel for the panel replied, that the present 
was a different case from that contemplated by the act. 
What was here sought to be proved was the matter of 
special defence. 

Lord Cowan. — The ruling we are now about to give 
in reference to the latitude in point of time, is to 
apply only to questions hereafter to be put to witnesses 
for the panel — a latitude of time to the extent of a 
month, whether the witness had previously stated such 
a thing against the panel ; whether, on a particular day, 
or within a day or two, during one month, he did make 
such statements in presence of certain persons. 

Lord Ardmillan. — I quite concur. We must be 
careful to protect the law and the interest of a witness. 
The specified occasion must in general be much more 
specific than within a month— on or about a particular 



&c. 



AND CIRCUIT COURTS OF JUSTICIARY. 47 

day. On the other hand, seeing the special defence No. 6. 
that this witness has used expressions of particular wijaon, jr. 
malice, we think that one month is a reasonable limit Aberdeen, 
within which to allow such proof of malice. ib6i/ 

Lord Cowan. — The reason of tying prisoners down in Fcrgery, 
regard to the time which may be allowed them as to 
proving malicious feeling is, that it ought to be known 
when that malicious feeling was entertained ; for the 
Jury will naturally give much more weight to evidence 
of malice evinced within a month, than to evidence of 
malice shown a year or years ago. The special defence 
must be dealt with altogether independently of the act 
libelled, and the foundation should be laid by asking 
this witness whether at any time he had expressed 
malice against the prisoner. 



April 28. 
18C1. 



WEST CIRCUIT. 

GLASGOW. 

Judge— Lord Deab. 

Her Majesty's Advocate, Maitiand-Heriot A.D. 

AGAIN8T 

William Thompson alias William Murray, and George Bryce 
alias Robert Wilson — Nevay — Couper. 

Stouthrief — Housebreaking — Theft — Assault — Aggravation 
— Indictment — Relevancy. — Objections to an indictment charg- 
ing Stouthrief, especially when committed by means of housebreak- 
ing, and by a person who has been previously convicted of theft, 

as also, assault — repelled. No. 7. 

William 

William Thompson alias William Murray, and George & g£SJJ£ 
Bryce alias Robert Wilson, were indicted and accused : Bryce * 

Glasgow. 

That albeit, hy the laws of this and of every other well-governed 1861. ' 
realm, Stouthrief, especially when committed by means of House- Stouthrief 
breaking, and by a person who has been previously convicted of theft ; Ac. 



48 CASES BEFORE THE HIGH COURT 

If & j m as also Theft, especially when committed by means of Housebreaking, 

wtniam and by a person who has been previously eonvicted of tbeft ; as also 

& George Assault, especially when committed to the injury of the person, are 

Brj«*» crimes of an heinous nature, and severely punishable : Yet true it 
Glasgow, is and of verity, that you the Baid William Thompson alias William 

1861. * Murray are guilty of the said crime of stouthrief, aggravated as afore- 
Stouthrief Ba *^' or °^ ^ e ^"^ crime of theft, aggravated as aforesaid, and of the 

&c. said crime of assault, aggravated as aforesaid, or of one or other of 
the said crimes, actor, or art and part; and you the said George 
Bryce alias Robert Wilson are guilty of the said crime of stouthrief, 
aggravated by having been committed by means of housebreaking, or 
of the said crime of theft, aggravated by having been committed by 
means of housebreaking, and of the said crime of assault, aggravated 
as aforesaid, or of one or other of the said crimes, actor, or art and 
part : In so far as, on the 13th or 14th day of February 1861, or 
on one or other of the days of that month, or of January immediately 
preceding, or of March immediately following, you the said William 
Thompson alias William Murray and George Bryce alias Robert Wil- 
son did, both and each or one or other of you, wickedly and feloni- 
ously, break into and enter the dwelling-house at Longhill, in the 
parish of Lanark and shire of Lanark, then and now or lately occupied 
by Alexander Smith, farmer, now or lately residing there, by re- 
moving a portion of the thatch and turf covering the roof of a milk- 
house, forming part of the offices of said farm, and entering at the 
aperture so formed, and by eutting or breaking a hole or opening in a 
lath and plaster partition between the said milk-house and a byre com- 
municating with the said dwelling-house, and passing through the 
said hole or opening into the said byre, and thence into the said 
dwelling-house, or in some other manner to the prosecutor unknown ; 
and having thus obtained entrance into the said dwelling-house, you 
the said William Thompson alias William Murray and George Bryce 
alias Robert Wilson did, both and each or one or other of you, then 
and there wickedly and feloniously, attack and assault the said Alex- 
ander Smith and Margaret Finlay or Smith, his wife, then and now 
or lately residing with him, or one or other of them, then in bed in 
said house, and did brandish a carving knife or other large knife over 
them, and did threaten to kill them, or one or other of them, and to 
burn the house, if they did not deliver up their money to you ; and 
the said Alexander Smith having got out of bed, you did attack and 
assault him and struggle with him, and did with a gun, then lying in 
said house, strike him one or more blows on or about the shoulder or 
other part of his person, to the injury of his person, by all which, or 
part thereof, the said Alexander Smith, and Margaret Finlay or Smith, 
and Mary Flood, their servant, then residing with them, were put in 
a state of great bodily fear and alarm; and having by your said 
violence and threats overpowered and intimidated the said Alexander 



AND OIACUIT COURTS OF JUSTICIARY. 49 

Smith, and the said Margaret Finlay or Smith, or one or other of No. 7. 
them, you the said William Thompson alias William Murray and xSotSJ^i 
George Bryoe alias Robert Wilson, did, both and each or one or other and George 
of you, then and there, wickedly, masterfully, and feloniously, steal gyee * 
and theftuoualy away take from the said dwelling-house two bank or ^^^T* 
banker's notes for five pounds sterling each, twenty shillings, or there- \sei. ' 
by, in silver money, a purse, a silver or other metal watch, and a stouthrief, 
plaid, the property, or in the lawful possession, of the said Alexander &c# 
Smith: Or otherwise, time above libelled, you the said William 
Thompson alias William Murray and George Bryce alias Robert 
Wilson did, both and each or one or other of you, wickedly and felo- 
niously, break into and enter the house above libelled, in manner 
above libelled; and having, in manner above libelled, obtained en- 
trance into said house, you did, then and there, wickedly and feloni- 
ously, steal and theftuously away take the money and articles above 
libelled, or part thereof, the property, or in the lawful posses- 
sion, of the said Alexander Smith: And you the said William 
Thompson alias William Murray have been previously convicted of 
theft 



Nevay, for the panels, objected to the relevancy, in 
respect, (1.) That stouthrief could not be libelled with 
an aggravation of housebreaking, which, in the present 
case, was of the essence of the crime charged. (2.) That 
the subsumption of the minor contained two substan- 
tive charges, viz., stouthrief, with an alternative of theft 
by housebreaking and assault ; while in the species facti, 
no assault was charged separate from the acts of violence 
making up the charge of stouthrief. He contended, 
therefore, that the assault must be departed from as 
having no species facti to support it. 

The objections were repelled, and the libel found 
relevant. 

The panel Thompson pleaded guilty of the theft as 
libelled, but not guilty of the other charges. 

The Jury unanimously found the panel Thompson 
guilty of stouthrief and assault as libelled ; and, with 
one dissenting voice, found the panel Bryce also guilty 
of stouthrief and assault as libelled. 

VOL. IV. n 



50 CASES BEFORE THE HIGH COURT 

wfflkm Sentence penal servitude— Thompson for fifteen years, 
Thompson a^d Bryce for ten years. 1 

and George y * 

Bryce. 



April 26. 

1861. 

Stouthrief. 

*c ' HIGH COURT. 



Miv 20 

1861. 



Present, 

The Lord Justice-General. 

Lords Deas and Neaves. 

Her Majesty's Advocate, — Sol.-Gen. Mcdiland— Hector, A J). 

AGAINST 

John Nellis or Neillus, — Mwrhead. 

Indictment — Libelling of Statutes — Returning from Penal 
Servitude — Statutes 5th Geo. IT., c 84 ; 4th and 5th Will. 
IT., a 67; 9th and 10th Vict., c 24; 20th and 21st Vict., 
c. 3. — (1.) In a prosecution for returning from penal servitude, 

. libelled on the enactments 5th Geo. IV., c. 84, sects. 2 and 22 ; 
4th and 5th Will. IV., c. 67 ; and 20th and 21st Vict., c. 3, sect 2, 
which make the punishment for the crime transportation for life, — 
held that the Court had power to impose a short term of penal ser- 



1 At the Ayr Circuit, October 2. 1860, John Smith was charged 
with ' theft, especially when committed by means of housebreakings 
1 and by a person who has previously been convicted of theft, and of 
* stouthrief/ [Then followed the narrative]. In the list of produc- 
tions was ' an extract or certified copy of a conviction of the crime of 
' stouthrief obtained* against you the said John Smith, under the 
' name of Daniel Sillers, before the Circuit Court of Justiciary, held 
1 at Inverary on the 24th day of September 1851/ 

Objection was taken that previous conviction for stouthrief could not 
be relevantly charged as an aggravation of a charge of theft, but the 
objection was repelled, and the panel having been convicted, was sen- 
tenced to penal servitude for fourteen years. 

Judges — Lords Cowan and Deas. 
Act Maitland Heriot A.D.— Alt. Hope. 



AND CIRCUIT COURTS OF JUSTICIARY. 51 

vitude, although the enactments 9th and 10th Vict., o. 24, sect. 1, No. 8. 
and 20th and 21st Vict., c 3, sect. 2, empowering them to do bo, ^j^" 18 

were sot libelled. (2.) Circumstances in which the Court imposed 

a sentence of one month's imprisonment and three years penal servi- jf^ 2 q. ' 
tude, for returning from penal servitude. 1861. 



Returning 

John Nellis or Neillus was indicted and accused — £^i!?r aI 



Servitude. 



That albeit, by an Act passed in the fifth year of the reign of 
His Majesty King George the Fourth, chapter eighty-four, intituled, 

* An Act for the Transportation of Offenders from Great Britain/ it 
is by section second enacted, * That from and after the commencement 
4 of this Act, every person convicted before any Court of competent 
4 jurisdiction in Great Britain of an offence for which he or she shall 
1 be liable to be transported or banished, shall be adjudged and ordered 
4 to be transported or banished beyond the seas for the term of life, or 
1 years for which such offender shall be liable by any law to be trans- 
4 ported or banished :' And by section twenty-second of said Act it is 
enacted, 'That if any offender who shall have been or shall be so sen- 

* tenced or ordered to be transported or banished, or who shall have 
4 agreed or shall agree, to transport or banish himself or herself on 
4 certain conditions, either for life or any number of years, under the 
4 provisions of this or any former Act, shall be afterwards at large 
4 within any part of his Majesty's dominions, without some lawful 
4 cause, before the expiration of the term for which such offender shall 
4 have been sentenced, or ordered to be transported or banished, or 
4 shall have so agreed to transport or banish himself or herself, every 
4 such offender so being at large, being thereof lawfully convicted, 
4 shall suffer death, as in cases of felony, without the benefit of clergy ; 
4 and such offender may be tried either in the county or place where 
4 he or she shall be apprehended, or in that from whence he or she 

* was ordered to be transported or banished :' And by another Act 
passed in the fourth and fifth years of the reign of His late Majesty 
King William the Fourth, chapter sixty-seven, intituled, ' An Act for 
4 abolishing capital punishment in case of returning from transporta- 
4 lion, 1 it is, on the recital of the said Act of the fifth year of the reign 
of His Majesty King George the Fourth, or of the said twenty-second 
section thereof, enacted, 'That so much of the recited Act as inflicts 
4 the punishment of death upon persons convicted of any offence therein 
4 and hereinbefore specified shall be and the same is hereby repealed ; 
4 and that, from and after the passing of this Act, every person con- 
4 victed of any offence above specified in the said Act of the fifth year 
1 of the reign of His late Majesty King George the Fourth, or of aid- 
4 ing or abetting, counselling or procuring, the commission thereof, 

shall be liable to be transported beyond the seas for his or her natu- 



52 CASES BEFORE THE HIGH COURT 

No 8. * ral life, and previously to transportation shall be imprisoned, with 
j0l N *u eUiS * or w *^ xout hard labour, in any common gaol, house of correction, 

— — ' prison or penitentiary, for any term not exceeding four years :' And 

*Ly 20. by another Act passed in the 20th and 21st year of the reign of Her 
18C1 * Majesty Queen Victoria, chapter three, intituled, ' An Act to amend 
Returning ' the Act of the sixteenth and seventeenth years of Her Majesty, to 
S<^tude ' substitute in certain cases other punishment in lieu of transportation, 9 
it is enacted by section third, ' All Acts and provisions now applicable 
* to and for the removal and transportation of offenders under sentence 
' or order of transportation, to and from any places beyond the seas, 
' and concerning their custody, management, and control, and the 
' property in their services, and the punishment of such offenders if 
4 at large without lawful cause before the expiration of their sentence, 
4 and all other provisions now applicable to and in the case of persona 
4 under the sentence or order of transportation, shall apply to and in 
4 the case of persons under sentence or order of penal servitude, as if 
' they were persons under sentence or order of transportation :' Yet 
true it is and of veritt, that you the said John Nellis or Neillua 
are guilty of the said crime or offence of being at large within Her 
Majesty's dominions, without lawful cause, before the expiration of 
the term for which you have been sentenced to penal servitude, actor, 
or art and part : In so far as, you the said John Nellis or Neillus 
having been indicted before the Circuit-court of Justiciary, held at 
Perth, in the month of September 1856, for the crime of theft, aggra- 
vated by housebreaking, and by your being habite and repute a thief^ 
and having been previously convicted of theft, and you the said John 
Nellis or Neillus having, by the verdict of a jury, been convicted of 
the said crime of theft, aggravated as aforesaid, before the said Circuit- 
court at Perth, on the 29th day of September 1856, and the said Court 
having, then and there, in respect of the said verdict, sentenced you to 
penal servitude for the period of six years, from the said 29th day of 
September 1856 ; Nevertheless, you the said John Nellis or Neillua 
were, on the 9th day of March 1861, or on one or other of the days of 
that month, or of February immediately preceding, found at large, 
without lawful cause, before the expiration of the term of the said sen- 
tence of penal servitude, in or near the house or premises situated in 
or near Old Assembly Close, High Street, Edinburgh, then and now 
or lately occupied by William Nellis, then and now or lately residing 
there. 

Muibhead, for the panel, objected to the relevancy — 
(1.) That the indictment set forth no crime. Returning 
from transportation or penal servitude was not an 
offence at common law ; it was a crime only by force 



AND CIRCUIT COURTS OP JUSTICIARY. 53 

of statute, and inasmuch as punishment was declared to ""ifm. 
be its consequence, as it was required in all indict- or Nemos. 
meats that a crime should be charged, it was therefore HighCourt. 
necessary, in such a one as the present, that the punish- isw. * 
ment, without which the crime could not exist, should R*tunmig 
be distinctly and accurately set forth. But it was not ; Servitude. 
the only punishment set forth as consequent on a man's 
being found at large before the expiry of his term of 
sentence, was transportation — a punishment not now 
known to the law. To set forth a punishment which 
no Court could award, was the same thing as to set 
forth no punishment at all ; and in such a case, to set 
forth no punishment was to set forth no crime. (2.) 
That the Act 9th and 10th Vict., cap. 24, sect. 1, giving 
power to the Court, in certain cases, to award sentences 
of transportation of shorter duration than they were 
previously empowered to do ; and the Act 20th and 
21st Vict., cap. 3, sect. 2, substituting sentence of penal 
servitude for that of transportation, had not been libelled 
on. In the case of James Martin, High Court, Nov. 16, 
1835, Swinton, vol. i. p. 1, which was before the date of 
the 9th and 10th Vict., in an indictment for returning 
from transportation, the omission to libel in the Act 4th 
and 5th Will. IV., cap. 67, which reduced the punishment 
applicable to the case, from death to transportation for 
life, was held fatal. On the same principle, in the pre- 
sent case, the omission to libel on the Acts of Victoria, 
destroyed the indictment. As it stood, the Court could 
not pass a milder sentence than that of penal servitude 
for life, with previous imprisonment not exceeding four 
years ; whereas, if the Acts of Victoria were libelled on, 
the Court might award a sentence of three years penal 
servitude, with previous imprisonment for any period 
not exceeding two years. 

The Soucitob-General, for the prosecution. — The 
objections very much ran into each other. The case of 
Martin was not one in point. There the objection taken 
and sustained was, that the 4th and 5th Will. IV., c. 67, 



54 CA8E8 BEFORE THE HIGH COURT 

w ** •• . was not libelled on. But the reason why the omission 

John Nelhs . J 

or Neuius. was in that case held fatal was, that the Act of William 
High Court, absolutely repealed so much of the Act 5th Geo. IV. f 
i86i. ' cap. 84, as inflicted capital punishment on persons re- 
Returning turning from transportation, thereby abolishing the 
Servitude.* statutory offence ; which, however, was, by the very 
same clause, re-established, the punishment being re- 
duced to transportation for life. Under the indictment 
as it stood in that case, there was truly no offence set 
forth ; for the only statute founded on had been in its 
operative part repealed. But neither the Act 9th and 
10th Vict., cap. 24, nor the Act 20th and 21st Vict, 
cap. 3, repealed the Act of William IV. ; returning from 
penal servitude still remained a statutory offence, not- 
withstanding their enactment. In practice those sta- 
tutes of Victoria were never founded on, even in the 
case of statutory offences, as, for example, in that of an 
indictment for forgery. They were general empower- 
ing statutes, to be taken notice of judicially, without 
being libelled on. 

Muirhead, in reply, said that what he maintained 
was this — that a man returning from penal servitude 
was a criminal only because he was, by statute, but not 
at common law, liable to punishment. The crime could 
not exist apart from the punishment ; for the act was 
not even forbidden. It was therefore necessary that 
the punishment applicable in the case should be set 
forth in the indictment. The practice in cases of forgery 
afforded no rule of guidance ; for that was an offence 
at common law, and statute only regulated the punish- 
ment applicable to it as such. 
After consultation — 

Lord Deas. — The leading statute founded on and 
quoted in the indictment is the Statute 5th Geo. IV., 
cap. 84, sect. 2, which does not substantively enact that 
being found at large during the currency of a sentence 
of transportation shall be an offence, but simply enacts, 
that every person so found, ' being thereof lawfully con- 



AND CIRCUIT OOOBTB OF JUSTICIARY. 65 

' victed, shall suffer death.' The Statute 4th and 5th T No. s 

John Nelhs 

WilL IV., c. 67, also founded on and quoted in the in- or Neiuus 
dictment, repeals this punishment, and substitutes for it High Court. 



transportation for life, preceded by a certain period of i86i. " 
imprisonment. Bat the subsequent statute 9th and Returning 
10th Vict., e. 24, which confers a discretion to limit ^^2? 
the punishment to transportation for not less than seven 
jean, or imprisonment not exceeding two years, and 
the enactment in the Statute 20th and 21st Vict., c. 3, 
which substitutes penal servitude for transportation, 
ace not noticed in the indictment. Now the objection 
taken is, that, on the face of the indictment, it appears 
to be imperative on the Court to award transportation 
for life, preceded by a certain term of imprisonment, 
whereas, by the subsequent enactments not libelled on, 
this is not imperative ; and, moreover, that the statu- 
tory punishment of transportation is abolished, and penal 
servitude substituted. 

I am rather disposed to think this objection ought to 
be sustained. We are called upon to award a statutory 
punishment for an act which is not alleged to be a com- 
mon law offence, and which is not even substantially 
declared a statutory offence, but to which act there is 
attached, by statute, a certain punishment ; and this 
being so, I think it ought to have appeared, on the face 
of the indictment, what the statutory punishment com- 
petent to be awarded really is. I do not think the 
argument that statutes of a general kind, altering or 
modifying punishments, do not require to be libelled, 
can be fairly applied to a case of this peculiar kind. 
The libel not only withholds enactments which, it is 
admittedly essential we should have before us, but is 
calculated to mislead ; and, upon the whole, I think 
the more satisfactory course would be to reject it. 

Lord Niavbs. — I am of opinion that these objections 
are not well founded. The offence of returning from 
transportation is created by two special statutes, the 5th 
Geo.IV., and the 4th and 5th William IV. Both of those 



56 CASES BEFORE THE HIGH COURT 

No. 8. statutes are here libelled, and it was proper and neces- 
w Neiu J 8 sary to do so, particularly as the second act, in a sub- 
High omit, stantial point, repeals the first. By another statute, 
mi. ' the 20th and 21st Victoria, all acts and provisions as to 
Returning returning from transportation, or the punishment of 
SerritHde. that offence, are made applicable to the case of penal 
servitude, and that statute is also here libelled, and pro- 
perly so. But it is said that there is an omission in the 
indictment to libel another statute, the 9th and 10th 
Vict., by which, in all cases where a long term of 
transportation is the prescribed punishment, the Court 
is allowed, at its discretion, to mitigate that sentence in 
a certain manner, and within certain limits, I am of 
opinion that it was not necessary to libel that statute. 
It does not specially relate to this offence, and it has no 
effect in creating the offence. Neither does it repeal 
the special statutes libelled. It merely introduces a ge- 
neral power of relaxation in the administration of justice, 
at the discretion of the Court, to the benefit of which 
the prisoner is entitled, but which I cannot see that the 
prosecutor was bound to set forth. As little, in my 
opinion, was it necessary for him to set forth the clause 
of the last statute of the 20th and 21st Victoria, discon- 
tinuing sentences of transportation, and substituting 
penal servitude therefor. This clause affects the general 
system of penal justice as regards the form of punish- 
ment, but it does not alter the character of this, or of 
any other special offence On that ground, I think it 
was not necessary to set it forth, and in practice, I am 
satisfied that it is never done. 

The Lord Justice-General. — My opinion in this case 
concurs with that last delivered. No doubt the indict- 
ment might have set forth more clearly the progress of the 
successive statutory enactments; but the question is, whe- 
ther this defect is fatal ? I cannot think that it is so. The 
statute said to have been omitted in the libel, is not one 
which imposes a particular measure of punishment ; it 
gives a general power to the Court. It is not necessary 



AND CIRCUIT COURT OF JUSTICIARY. 57 

that the Court should be informed that this general j^ ^. 
power of relaxation has been given to it ; it is enough «■ Neiiim. 
that it is given. %°5* 

The libel having been found relevant, the panel 1861 - 
pleaded guilty. *£■££ 

Muirhead, in mitigation of punishment, submitted Senitude. 
that, in the circumstances, the Court should exercise 
the power which they held themselves to possess, and, 
if they thought fit, of awarding a more lenient sentence 
than the indictment seemed to authorise. What the 
panel had done was no crime at common law, and was 
only what every prisoner was naturally expected to do 
when opportunity presented itself; he had regained his 
liberty by flight. In no country in Europe but our 
own was this regarded as a crime, unless when accom- 
panied by violence to persons or property. There was 
no suggestion of any such violence in the present case. 
The panel had escaped from Gibraltar about two years 
before the expiry of his term of sentence, through the 
connivance, as was said, of one of the warders ; but it 
was not said that he had broken prison, or done harm 
to any one in charge of him. Since his return to this 
country two years ago, he had been supporting himself 
and his family by honest industry, and had obtained 
from his employers very excellent certificates of cha- 
racter. 

In the circumstances, the Court restricted the sen- 
tence to three years 1 penal servitude, with one month's 
previous imprisonment. 



58 CASES BEFORE THE HIGH COURT 

Present, 

The Lord Justice-General, 

Lords Cowan and Nbaves. 

Heb Majesty's Advocate — Sol-Oen. Maitland—Shand, A.D. 

AGAINST 

Robert Hawton and William George Parker — Q. Young — 
D. Mackenzie. 

Murder — Culpable Homicide. — In the trial of a boatswain and a 
marine of one of her Majesty's ships for the crime of culpable homi- 
cide, in having fired on a party of trawlers, and killed one of them, 
the Lord Justice- General directed the Jury that the marine was 
bound to obey the orders of the boatswain, unless his orders were fla- 
grantly illegal ; and that if the Jury were of opinion that the pri- 
soners had acted according to the usage of the naval service, and not 
recklessly, they were entitled to an acquittal The Jury returned 
a verdict of Not Guilty. 

Rota* Robert Hawton, boatswain, and William George 
H w7iuiun : Pabker, a marine on board her Majesty s steamer 'Jackal,' 
George were charged with Murder, or Culpable Homicide : 



High Court. 
July 15. In so fab as, on the 6th or 7th day of June 1861, or on one or 

1861 ' other of the days of that month, or of May immediately preceding, at 
Culpable or near that part of the east shore or beach of Lochfyne called or 
known as Otter Bank or Otter Spit, situated about 620 yards, or 
thereby, to the south or south-west of East Otter Pier, measuring along 
the said shore or beach, in the parish of Kilfinan, and county of Ar- 
gyll, you the said Robert Hawton and William George Parker did, 
both and each or one or other of you, several or one or more times, 
wickedly and feloniously discharge a rifle or other gun, and a revolver 
or other pistol, or one or other of them, both or one or other of them 
being loaded with powder and ball or other hard substance or substan- 
ces to the prosecutor unknown, or some other fire-arm or fire-arms to 
the prosecutor unknown, loaded as aforesaid, at the now deceased Peter 
M'Dougall, fisherman, then or lately before residing in or near Ardri- 
shaig, in the parish of South Enapdale and county of Argyll, and 
Duncan M ( Brayen, Alexander M'Brayen, Neill M'Ewan, Archibald 
M'Ewan, Archibald Morrison, Hugh M'Farlane, and Robert Bruce, all 



AND CIRCUIT COURTS OF JUSTICIARY. 59 

fishermen, and all now or lately residing in or near Ardrishaig aforesaid, No. 9. 
or one or more of them, who were then, all and each or one or more of n** )* 1 *. 
them, in a boat on Lochfyne aforesaid, and distant thirty-five yards, or William 
thereby, or other short distance, from that part of the shore or beach of ^ 
Lochfyne above libelled ; and one or more of the shots discharged as 



aforesaid did take effect on the said Peter M'Dougall, and he was j^ST" 
thereby mortally wonnded on or near the head and face, and, in con- 1861. 
sequence, immediately or soon thereafter died, and was thus murdered Culpable 
by you the said Robert Hawton and William George Parker, or one Homicide - 
or other of you : Or otherwise, time and place above libelled, you 
the said Robert Hawton and William George Parker did, both and 
each, or one or other of you, several or one or more times, culpably 
and recklessly discharge a rifle or other gun, and a revolver or other 
pistol, or one or other of them, both or one or other of them being 
loaded with powder and ball or other hard substance or substances to 
the prosecutor unknown, or some other fire-arm or fire-arms to the pro- 
secutor unknown, loaded as aforesaid, at or in the direction of the said 
Peter M'Dougall, and the said other persons, or one or more of them, 
who were along with him in the said boat on Lochfyne, and distant 
thirty-five yards, or thereby, or other short distance from that part of 
the shore or beach of Lochfyne above libelled ; and one or more of the 
shots discharged as last above libelled, did take effect on the said Peter 
M'Dougall, and he was thereby mortally wounded on or near the head 
and face, and, in consequence, immediately or soon thereafter died, 
and was thus culpably killed by you the said Robert Hawton and 
William George Parker, or one or other of you. 

The counsel for the panels moved for a separation of 
the trials, on the ground that they were alone together 
upon the shore when the shots charged in the libel were 
fired, and that it was necessary to the defence of each, 
that he should have the evidence of the other as a wit- 
ness ; and that this was the more necessary, because the 
panels were at the time engaged in the public service, 
the one acting under and according to the orders of the 
other, — the giving of which, and their terms it was de- 
sirable to prove. 

The Lord Justice-General said, the Court was of 
opinion, that no sufficient grounds had been made out 
for granting a separation of the trials. It did not appear 
that the panels were put to any disadvantage by being 
tried together. Their relative position could easily be 



CO CASES BEFORE HIGH COURT 

ibfert established by other evidence than their own. So, also, 
^5S^ M *° *^ e mature of the service on which they were sent, 
gojg® the nature of the persons against whom they acted, — 
High court a ^ these things could easily be established in the ordi- 
J i8fii 5 ' nar y wa y » an( ^ M *° P ersons * situated and so em- 
Cnl * e ployed, the law had its own presumptions, which it was 
Homicide, necessary for the prosecutor to overcome. 
The motion was therefore refused. 
The panels pleaded Not Guilty. 

EVIDENCE FOR THE PROSECUTION. 

Duncan M'Brayen, fisherman. — I live at Ardrishaig. I have a 
fishing-boat called the * Weatherside.' I went to fish on the afternoon 
of 6th Jane. Another boat (the ' Star 9 ) was with us. , Peter M'Dougally 
Ardrishaig, was in my boat; also Neil M*Ewan, Archibald Morrison, 
and Archibald M'Ewan. In the ' Star/ Robert Bruce, John Hamil- 
ton, Dugald M'Ewan, and Hugh MTarlane. We went to Otter Bay, 
and were fishing there with a trawl net. When we were fishing we 
put out an anchor. About midnight we anchored near Otter Pier, 
about thirty or thirty-five yards from shore. The anchor was from 
the c Star.' The other boat was holding on by the * Star/ I was 
doing so. The net was in the ' Star.' The herrings we had taken 
were in the * Weatherside.' We did not fish after anchoring near the 
shore. We were about six hundred yards from the pier, and about 
thirty or thirty-five yards from the bank called the Spit The Spit 
was covered by the tide at the time. We were redding the net, and 
talking and smoking. We had drawn the net, but there were no 
herrings in it at that shot. About half an hour after anchoring — ue^ 
about 12 o'clock — I heard a cry and a shot about the same time. I 
cannot say which first They came from the same place. I looked, 
and saw two more men. They cried to us to come in with that boat 
We cried we were coming. They fired at us so hard that the men 
could not sit at their oars. They called more than once to come in 
with that boat They fired five or six shots within three or four 
minutes. We heard something whistling by us, which we took for 
balls. We heard this more than once. We believed that they were 
firing ball Before this, all the men were in the ' Weatherside,' ex- 
cept Dugald M'Ewan and John Hamilton, who were in the ' Star.' 
I heard some cry to cut the rope, and it was cut, and we pulled to 
shore as nut as we* could for the firing, which frightened the men, 
and made them lie down in the boat When the boat struck the 
beach, N. M'Ewan called my attention to M'Dougall. I looked, and 
saw him lying close to the gunwal, on the front side — his head down, 



AND CIRCUIT COURTS OF JUSTICIARY. 61 

and blood flowing on to his shoulder. He appeared to be dead. Neil No. 9. 

M'Ewan said that M'Dougall was dead. The two men were then hJJJJ^ 

dose to the bow of the boat After looking at M'Dougall, £ looked William 

op and saw the two men running np from the beach. I jumped ashore, 5**fg* 

and after running about a hundred yards, I overtook them. I recog- " 

nised Hawton. He had on a blue wincey jacket, and had a pistol in jfuly 15. 

his hand. The other I did not know. He had on a cloak or wide 1861 « 



greatcoat. He had a musket, or what I took to be one. I told them Culpable 
they had murdered the man, and that what I wanted was to know onu 
who they were. The officer Hawton said, that if there was anything 
wrong, he was the man I had to do with. I asked his name. He 
gare it, and said he belonged to the ' Jackal' He said something 
about a boat. I don't remember what. He went away. I under* 
stood he was going for his boat, to assist us in regard to the dead man. 
Alexander M ( Brayen came up while I was with the two men. While 
we were in our boat I heard Alexander M'Brayen cry out that he 
had got a ball in the hand. That was after the second or third shot. 
Next morning I saw his hand. It was cut. When the two men 
went away, we returned to our boat, and struck a light, and examined 
M'Dougall's body, and found a wound in the left temple. We rowed 
to Auehnaba, on the opposite side of Lochfine. Before we landed at 
the other landing, we had thrown our net overboard. We took it up 
again before crossing to Auehnaba. From Auehnaba we went to 
Lochgilphead for a doctor. After that we went to Ardrishaig, and 
took M'Dougall's body home. Dr M'Nab came and saw him. Dr 
Hunter and Dr Campbell also came and saw him. I have measured 
the distance from where the two men stood to the other pier. That 
spot was above six hundred yards to S.W. of Pier, along the shore. 
I called from the boat to the man on shore while the firing was going 
on. I called for God's sake not to kill us ; and when about ten feet 
of shore, ' In God's name what are you at ? ' One of them an- 
swered, ' Gome on shore, and we'll damned soon let you know what 
1 we are.' There were no shots after that. We had no suspicion 
that they belonged either to the Jackal or Jackdaw. 

Cross-examined for the panels. — We had set out from Ardrishaig 
about six o'clock. I commanded the 'Weatherside.' There was 
only one net between the two boats. In trawling, two boats are en- 
gaged with one net The * Star v was the boat that shot the net. She 
was then loose, and the * Weatherside ' at anchor. The net was 
hauled into the ' Star.' She was then at anchor. We then lifted the 
anchor of the ' Weatherside.' About fiva or six minutes after drag- 
ging the nets, the first shot was fired. After the first shot was fired 
some of the men came from the * Star' into the ' Weatherside,' leaving 
two in the * Star.' Those who so came into the ' Weatherside ' were 
Neil IPGowan, Hugh M'Farlane, Archibald Morrison, Robert Brace, 



62 CASES BEFORE THE HIGH COURT 

fNo. 9. and Alexander M'Brayen. I suppose they thought they were safer 
Hawton & m * ne * Weatherside.' The * Star' was at anchor, and the net was in 

William her, and she was nearer the shore. The net was sunk by Dugald 

P^-ker. M'Ewan and J. Hamilton, after the others left the * Star/ I did not 
Hiirh Court. see * nem 8m ^ **• * 8aw xt zftermud* lifted. A trawl-net is sunk by 

July 15. throwing it overboard. It did not sink entirely. When it is to be 
186 sunk entirely a stone is attached. There was no stone on this occa- 

S^amaL 8 * m# * thought it likely that the men on shore might seize the net. 
Trawling is against law. I knew that the ' Jackdaw' was on the 
coast, and sent out boats at night to seize trawl-nets. We used to 
have men on watch to give us warning, and had so that night. The 
men on the watch that night were about half a mile from us on the 
water. The usual signal was to show a light, and then we could 
throw out the net We had no watchman on shore that night. When 
we were hailed from the shore there was nothing to prevent the 
1 Weatherside ' pulling in. We began to pull in three or four minutes 
after the first hail. The * Star ' was at shore first. We could not 
row in the * Weatherside,' because of men lying in the bottom of the 
boat. Bullets ceased when we began to pull to shore. It was a close 
calm night, not very clear. I supposed that the two men that we 
saw on the shore were in the service, for putting down trawling. It 
is at night or in the evening that we trawl. I knew that the men 
sent from the steamer were always armed. I did not know that they 
were in use to fire to bring boats to, about Ardrishaig, but I had heard 
of their doing so at Tarbert, about twelve miles below Ardrishaig. It 
is a great place for trawling. Hawton ran pretty hard. He stopped 
when I came within four or five yards of him. I waa crying after 
him. My idea was, that as they knew they had done the deed, they 
were running off. They were about fifteen or sixteen yards a-head of 
me, running, when I began to run after them. 

Re-examined for the prosecution. — Legal fishing is also practised at 
night. I knew that there were police on shore, to prevent trawling. 
I did not know whether they were armed. 

Alexander M'Brayen, fisherman. — On the 6th June I went with 
Duncan M'Brayen to the trawling. The ' Weatherside ' and ' Star ' 
together. Our last shot was near the Spit of Otter. The anchor of 
the * Star' was out. We saw two men on the bank at the neck of the 
Spit running towards shore. A cry and a shot came about the same 
time. No words. I did not hear the whistle of the bullet of the first 
shot As soon as they fired the first shot they cried to come ashore 
with the boat Duncan M'Brayen answered, that we were coining. 
The next thing was a shot There were five or six shots in less than 
five minutes. They continued to cry to come in shore. Duncan 
M'Brayen said, * In the name of God what are you at all/ One of 
them answered, * Gome on shore, and I'll damned soon show yon what 



AND CIRCUIT COURTS OF JUSTICIARY. 63 

( ire are*' At this time we were going towards shore, and lying in No. §, 
the bottom of the boat, except Duncan M'Brayen. I was rowing Hawton A 
while lying i n the bottom of the boat. 1 heard the whittle of bullets William 
at every shot but the first. I had my hand to my face, when two or p^.^ 
three shots wounded my hand. P. M'Dougafl was in the same boat Hfe hCo<irt 
with me— on the shore side of me. He leaned towards me. Neil July 15. 
M'Ewan was the first to notice M'Dougall, and cried that he was . 1861a 



dead. I cannot say which shot hit him. The firing was oyer at this ^Wij? 
time. I went on shore. Duncan M'Brayen went after the two men, 
who were running. I went after Duncan, and came up about a minute 
after he overtook them. I cannot identify them. One gave his name, 
bat I forget it He said he belonged to the 'Jackal.' He was 
dressed in a blue jacket. The other had a grey cloak or coat, — a 
marine. We took M i DougalTs body home. The distance from Otter 
Pier to where the two men stood is above six hundred yards. I saw 
it measured. 

Cross-examined for the panels. — I was in the ' Weatherside ' when 
we heard the first hail. The net had been pulled in about five minutes 
before. The ' Star ' shot the net When the first shot was fired two 
or three men jumped from the ' Star ' into the ' Weatherside.' The 
'Star' was next the shore, at anchor. The ( Weatherside' was not 
fastened. Nothing to prevent her coming ashore, except bullets. The 
net was thrown overboard after the first fire. It takes about a minute 
to threw out a net. We always throw our net over when we see our 
enemies. The net was thrown over after the men had gone into the 
' Weatherside/ As soon as the net was thrown over the ( Weather- 
side,* we began to pull ashore. The ' Star 7 got to shore first. There 
was only one shot fired before we began to pull ashore, but we made 
no way, as we were lying in the bottom of the boat to save ourselves. 
Pram the time of the first shot till the boat touched the beach would 
be about four minutes. After we began to make way we did not 
take above a minute to get to shore. The bullet that struck my 
hand took off a little skin, snd grazed my cheek, and touched my hair. 
I took it to be a bullet We supposed the men on shore to be our 
enemies, and to belong to the ( Jackal ' or ' Jackdaw.' There were no 
marks of bullets in the boat. The night was calm. It was after I 
was grazed that I lay down in the bottom of the boat When I was 
grazed no person was rowing but myself and no way was made. We 
had a boat on watch; — the ' Redjaoket' The men in the ' Star' 
were throwing over the net while the firing was going on. 

Re-examined for the prosecution. — The anchor rope of the * Star ' 
was cut to make quick work. 

To the Jury. — The depth of water was about two fathoms. 

2b Ae Court — The 'Star' pulled to shore while the shots were 
firing* 



64 GASES BEFORE THE HIGH COURT 

JF£*1 Huoh M'Farlane, fisherman. — I was in the 4 Weatherside ' trawl- 

Hawton & m & We were near Otter Spit when we heard from shore a cry and 

William Bno t. I cannot say which was first. There were from five to seven 

Parker, shots fired within one and a half or two minutes. I heard the men on 

Highrvnrt- 8nore ca ^ to °° me "* ^^ t ^ at ^ oat# ^ uncan M'Brayen answered, to 

July 15. give us time and we would go in with the boats. I did not hear any- 

186 * thing said, or order given by one man on shore to the other. I did 

Ifaudfe not hear one °* taem "J ^ re - * heard like a noise of balls going 

over my head. Alexander M'Brayen called out that he was struck. 

The men in the ' Weatherside ' bent down in the boat. A few strokes 

took the boat to shore. We began to pull her to shore about the 

middle of the firing. It stopped rather before we got to shore. I 

heard the order given to heave the net overboard. This was by one 

of the crew of the ' Star ' — loud enough for everybody to hear it It 

took from one to two minutes to heave net over. The firing was then 

going on. After the net was thrown over there was no more firing. 

To a Juryman. — The people on shore could not see what was doing 
throwing the net over. 

To the Court. — I was wrong in saying that we began to pull ashore 
about the middle of the firing. 

Duqald M'Ewan, fisherman.— I was in the * Star.' We heard 
shots coming from shore, and men crying to come on shore. Duncan 
M'Brayen answered, to give us time and we would go on shore. 
When the first shot was fired there were in the ' Star/ myself John 
Hamilton, Neil M'Ewan, Hugh M'Farlane, and Archibald M'Ewan. 
All these, except Hamilton and myself went into the ' Weatherside. 
When the first shot fired we were sitting in the ' Star/ After the 
first shot was fired John Hamilton and I threw out the net It took 
us about one or one and a half minutes to throw the net out The 
firing continued about two or three minutes. I cannot say whether it 
continued after we had thrown the net over. After throwing over the 
net I tried to haul in the anchor. Some cried to cut the rope. I cut 
it to get to shore quick. Hamilton and I pulled in the ' Star' quick 
We were in before the ( Weatherside.' I did not hear of M'DougalT* 
death till I got to Achnaba. 

Cross-examined for the panels. — I did not see the ' Weatherside ' ** 
the shore. One of the men on shore came to the water edge about 
three yards from our stern. I could not see how he was dressed. I 
spoke to him. He told us to put in the boat, and we told him to come 
on board. He said he could not get on board. I told him to go and 
get his own boat He then walked down to where the other man 
was, at the ' Weatherside,' which was about ten yards from us. I 
don't know whether she was then beached. I shoved off the ' Star, 
and made for Achnaba. The ' Weatherside ' came there about ten or 
fifteen minutes after us. 




AND CIRCUIT COURTS OP JUSTICIARY. 65 

Re-examined for the prosecution. — One of the men on shore had a 
gun in his hand. I don't think it was the one who spoke to us. 

Richard Adams. — I am a seaman in the 'Jackal.' I left the 
'Jackal' one night. About the time the man was killed I was in a 
boat with three other seamen, an officer, and a marine. The officer ■ 
was Hawton, and the marine Parker. We sailed in the direction of JJdy 15. ' 
the Otter Spit. Prisoners landed a good way from the Otter Spit. ]8gl » 
They took with them a musket, which Parker had. I cannot say Culpable 
how long they were away. It would be betwen one and three hours. onuci e ' 
When they returned Hawton desired us to pull up to where the people 
were. We did so, but the people were gone. He said he was afraid 
they had hurt some person. He said they had fired a blank shot. 

Cross-examined for the panels. — We had our cutlasses. Every thing 
was as usual. 

E. F. Loddbr, Lieutenant, R.N. — I commanded the * Jackal ' in 
Lochfyne on the 6th June. I am the Naval Superintendent of Fisheries. 
Part of the duty is to suppress trawling. On the 6th June I sent out a 
host in charge of Hawton, four seamen, and one marine (Parker). No 
special instructions. There was a revolver in charge of Hawton. 
The marine had a rifle, and the seamen cutlasses. The revolver is 
generally loaded with bail. I don't know whether the rifle was loaded. 
On such expeditions we generally send ten rounds of ball cartridges 
in charge of the officer in command of the boat. Also it is usual to 
take blank cartridges for rifle. These are in charge of a marine. 
Our gunner was away from the ship that evening. I don't know who 
served out the ammunition. The boat went away about 8 p.m. Hawton 
reported himself to me at 4 a.m. He said he had an idea that a man 
had been wounded in a fishing-boat, but he had not seen the man. 

Cross-examined for the panels. — I was instructed by the Admiralty 
to put myself in communication with the Fishery Board. We have a 
crew of sixty (sailors and marines). Our only duty was to repress 
trawling. After I superseded Lieutenant Simpson, I ascertained 
the practice that had been followed, and continued the same practice 
of sending out at night boats armed, four seamen, a marine, and a 
warrant officer. The seamen and marine are under order of the war- 
rant officer. The officer has a revolver, the marine a rifle, and the 
seamen cutlasses. Hawton, the boatswain, was frequently sent in 
charge of a boat. Parker was frequently sent as a marine on similar 
service. The blank cartridges were to be used to bring boats to. The 
object in view was to seize nets. In bringing the boat to, we fire 
nrrt blank cartridges, and if no attention is paid, fire ball wide of the 
boat, and if no attention, you would be justified in firing right into 
the boat. The cartridges were sent that night to be so used. I con- 
sidered they were entitled to bring to the trawlers' boats, in order to 
seise nets. The instructions to me were general, to put down trawl- 
VOL. IV. E 



66 CASES BEFORE THE HIGH COURT 

No. 9. ing, and to seize nets. I have been applied to, but declined to aDow 

1fartm&. 8eamen t° h* *nned with fire-arms. It was perfectly right for tho 

William prisoners to land and walk along shore, and it is usual to do so. When 

pj™££^ the prisoners came opposite the boats believed to be trawling it was 

High Court Ekwton's duty to hail them ; then to fire blank cartridges ; then ball ; 

July 15. just as if they had been in a ship's boat. I am very much satisfied with 

* 861 ' Hawton's conduct as an officer— of good conduct, attentive to his doty, 

Cta^M. 6 and understands it, and has good temper. Parker had also a good 

character, and is acquainted with his duty. It was the marine's 

duty to act under orders of the boatswain, and to fire only according 

to order. It would not surprise me that on firing a rifle wide of a boat, 

the ball should strike some one in the boat. If a ball strikes water it 

is apt to rebound and go off at an angle. Trawling was frequent in 

Lochfyne at the time, and I had urgent orders as to putting it down. 

Hawton lias a medal for the Baltic Parker has medals for the Crimea. 

Both are excellent men. 

Re-examined for the Prosecution. — The four steps I have described 
for bringing to are the same as used in the navy for bringing to vessels. 
I don't understand that the * Jackal' was in Lochfyne to assist the 
civil powers. My orders were from the Fishing Board. Our object ia 
to seize nets and apprehend the men. At sea, a vessel brought to, 
either comes to you, or stays where she is till you come to her if you 
can get at her. I have known previously a boat brought to in Loch- 
fyne by firing ball wide. I know this from the entry in the log-book. 
On another case a gunner fired ball when violence was threatened. 

Re-cross-examined. — When ihe officers are ashore bringing to, they 
would require the boats to come to shore. 

John Hunter, surgeon.— I made & post-mortem examination of the 
body of Peter M'Dougall on 8th June, along with Mr Campbell and 
Mr Jackson, surgeons — (Read report) — it is a true report ; one conti- 
nuous wound entering on the right temple, and passing out on the left 
side of the head. I think the wound was not made by an ordinary 
pistol bullet — more probably a rifle bullet 

Cross-examined.— Not a revolver bullet. Alexander M'Brayen had 
no wound of the hand or face— a mark on the hand, but not made by 
a bullet — a blister — I told him so. 

Duoald Campbell, surgeon. — Shown the report. It is true. I 
think it was not a pistol bullet. 

Cross-examined. — Alexander M'Brayen spoke of a wound on his 
hand ; but I examined, and could see nothing. 

The prisoners' declarations were then read. The de- 
claration of the boatswain stated : — 

That he was thirty-two years of age, and belonged to H.M.S. * Jackal, ' 
stationed in Lochfyne, with the view of preventing illegal fishing ; 



AND CIRCUIT COURTS OF JUSTICIARY. 07 

that on 6th June the ' Jackal' was lying at anchor, and he was Beat out No, 9. 
by arte of the commanding officer in charge of an armed boat, which Hawtoif Jt 
contained himself, four seamen, and a marine. Declarant had a revolver Wilfcun 
of six barrels, three of which were loaded. The marine had his rifle p£EJ£ 
and bayonet, and had ten ball cartridges and several blank charges ; HjghCourt. 
tad the seamen had their cutlasses. When about a mile or a mile &? '*» 
sad a half from the « Jackal,' he thought it better to go on shore with 18g1 ' 
only the marine, to evade the numerous spies of the trawlers. When Sf^^L 
they had gone some distance, they came upon a party of trawlers in 
two boats a little ont from the shore. They did not show themselves 
at first, bat waited till they got their net on board, and shot it again. 
Declarant then hailed them, but they spoke to each other in Gaelic, 
tad went on aa before. He then ordered the marine to fire blank over 
the boat. One of the fishermen called oat in English, * I do not know 
( who yoa are,' and his reply was, * If you come on shore you will 
' see. 9 They said they were ooming, lyit they made no movement 
towards ooming. He therefore ordered the marine to fire a second 
Wank charge over the boat, and he did so. Still the fishermen did 
sot move, and he ordered the marine to load again, and fire wide of the 
boats, and he did so, but he did not remember if he ordered to load 
with ball. As the fishermen did not come to, the marine fired a fourth 
round, bat without any special order from him. After this, one of the 
boats, which had two men, came in shore, but when he went close, they 
hacked oat again. The other boat, which had six or seven men in hen 
rowed along the shore. The marine followed her, and when declarant 
found that he could not get at the boat with the two men, he followed 
the marine, bat the boat did not come close enough for them to get in. 
A young man jumped out of the boat and came to them, and another 
man from the boat called out that one of the party was wounded. He 
thought this unlikely, but thought if it were true, he had better go and 
get the skiff!, and come to their assistance. While going along the 
beach, one of the fishermen ran after him, and told him that the fisher- 
man was dead. He thought this might be a decoy to get him out of 
the way, while they secured their nets, and he went instantly to the 
aku% and brought it to the spot as fast as the men could row. When 
he returned, the boats and fishermen were all gone. After the marine 
had fired two blank charges, he fired two charges from his revolver 
wide of the boat which had the two men in it, and he fired a third 
charge at the other boat between the marine's third and fourth round. 
These seven charges were all that were fired. He received no special 
orders to use fire-arms on this occasion ; but he knew that it was the 
practice on Lochfyne to fire not only blank cartridge, but also with 
ball over and a-stern of the boats, in order to bring them to. 

The marine! Parker, made a similar statement of the 
circumstances. He said: — 



68 CASES BEFORE THE HIGH COURT 

No. 9. That he was ordered, after twice firing blank without effect, to fire 

gj^™j[*£ with ball wide of the boat, and did so. The boatswain then told him 

William to load again, and fire a second time wide of the boat that was using 

p£j£*? the net After this the boat came a-shore, and two men came out, and 

777-77; — - one followed the boatswain up the beach. The boatswain said if there 
High Court. . 

July 15. was anything wrong, he would get the skiff and come to their assist- 



18gl * ance ; but when they returned with the afcu% men, boats, and nets were 
gone. 
This closed the case for the prosecution. 



Culpable ail gone. 
Homicide. 



EXCULPATORY EVIDENCE. 



John Mitchell Fukneaux, boatswain of the ' Jackal 9 — I have been 
above two years boatswain in the ' Jackal,' — first with Lieutenant 
Murray, then with Lieutenant Simpson, and now with Lieutenant Lodder. 
The ' Jackal' has been on the west coast about 18 months, for the 
purpose of putting down trawling. I have gone in boats as warrant- 
officer in command. I had a revolver and ball cartridge. A marine 
had a rifle and ball cartridge ; the seamen had cutlasses. In absence 
of the gunner and master, I gave out the ammunition. I did so from 
the 1st to 6 th June in the usual way. I was out on boat service on 
5th June, armed as I have described. The ball cartridges are kept 
in a locker in a boat under charge of the officer in command. The 
ammunition had been in the boat from 1st June. The reason of tak- 
ing blank cartridge was to fire to bring to. If not obeyed, ball car- 
tridge is to be fired a-head or a-stern. The marine was under orders 
of the officer. I have had occasion to fire ball myself to bring to ; the 
arms and ammunition were put into the boat to be used in that way. 
I have always told Hawton when going away, to hail, and to fire blank, 
and then to fire ball a-head or a-stern, clear of the boat. They al- 
ways stopped to me, or I would have fired into them. I have fre- 
quently landed to look for trawlers. If then my own boat was at a 
distance, I would fire into the trawler if she did not stop. I would call 
to them to come to shore ; if they did not obey, I would act as at sea 
when a boat does not stop. Our boats always went armed when on 
night duty. When I had occasion to fire blank or ball, I always re- 
ported it next morning. I have seen Lieutenant Simpson fire ball 
cartridge to bring to trawlers. I have known the gunner do so. It 
is the rule to have a loaded rifle on board for the purpose. I have 
been 18 years in the navy. I am senior to Hawton. One cannot tell 
by the sound of a bullet whether it is within eight or ten inches, or 
eight or ten feet. 

Cross-examined. — I have never seen people on shore bring to a 
boat 

Admiral Ramsay. — When entitled to search a vessel, and you wish 
to bring her to, you fire blank to leeward, then a shot a-head, then over, 



AND CIRCUIT COURTS OP JUSTICIARY. 69 

then at her. In boat service, the rule is much the same. I have No. 9. 
done so in regard to smugglers. There is no other rule — no written HjwrtoiiA 
law. If the case is put as to trawlers? The particular service makes William 
do difference. I would expect the warrant-officer so to act, unless he p^jf 8 * 
bad contrary orders. Case of part of officers on shore ? The same „. 
principle. The duty of the boat is to pull to shore. The marine July 15. 
most obey the orders of the warrant-officer. The firing over should 186 ** 
be so as to let them hear the whizzing of the ball or bullet. Culpable 

Cross-examined for the Prosecution. — The practice I have described onuci e " 
is according to the custom of nations. I don't know any written law 
on the subject I have never seen a case of a person on shore bringing 
boats to. 

Edward Stack. — I am gunner in the * Jackal/ Joined in August 
1860. Lieutenant Simpson commanded. Boats sent out at night 
were armed. An officer, a marine, and four seamen were on board. 
My duty was to give out ammunition. I have been on boat duty at 
night against trawlers. I have frequently brought them to, by order- 
ing them to lie on their oars. I have sometimes had to fire blank 
cartridge a-head or a-stern, or over them, and sometimes a second or a 
third. I once fired into a trawler in the Eyles of Bute. They some- 
times escaped. I have been 13 years in the service, and the custom 
of the service is what I have described. When Hawton joined, I in- 
structed him in the way I have described. He went with me on duty. 
It never occurred to me to have to bring to a trawler when I was on 
shore. I never gave instructions as to that. 

Frafcis Simpson. — I am Master of the steamer 'Jackal* Boats 
sent out at night were always armed. I have seen Lieutenant Simp- 
son fire ball cartridge to bring to trawlers. Arms can only be taken 
with authority of commanding officer ; the arms are to be used as ne- 
cessary for bringing boats to. Hawton has a good character, and 
knows his duty. Parker holds a good character. 

This dosed the evidence for the defence. 

The Solicitor-General, for the prosecution, passed 
from the charge of murder, but asked a conviction on 
the charge of culpable homicide. He contended that 
the matter was purely civil ; and that there was no 
warrant for adopting the practice usual in war for bring- 
ing boats to, in putting down trawling in Lochfyne. 
The offence of fishing with trawling-nets was punishable 
by fine, 23d and 24th Vict. cap. 92, sects. 3 and 6 ; and 
persons contravening the Act might be apprehended by 
the police, sect. 22. The naval officers were there 



70 CASES BEFORE THE HIOH COURT 

xZtei merely to aid the civil authorities. When a person hav- 
wSfcL* in 2 co^i^itted an offence ran away, the business of the 

6«gp officers of the law was to apprehend him ; but in order 
HighConrt , to do so they were certainly not entitled to fire at him. 

J i86i 15 ' ** wafl ^ te out °^ ^ e <I uest i 0I]L to **y that M'Dougall 
M b ^ was legally killed. Further, according to the rules of 
Homicide, the naval service, the officers were entitled to fire ball 
only in order to bring the boat to — that was, to make 
it stop till they should come up to it Here, certainly, 
the trawlers were not running away, and could not know 
that on this particular occasion it was not enough for 
them to stop where they were, but that they were bound 
to come a-shore. Neither was it proven that they knew, 
or could know, that Hawton and Parker belonged to 
the 'Jackal/ or had any authority to interfere with 
them. In any view, Hawton and Parker had been 
hasty and reckless. It was midnight, and dark ; they 
had fired much too hurriedly ; and while he did not 
contend that they had meant to fire into the boat, it 
must be presumed that Parker had not tried to fire very 
wide of it. 

Young, for the panels — The marine merely obeyed 
the orders of the boatswain. He was absolutely bound 
to do so, unless he was ordered to do what was obviously 
a grossly criminal and illegal act. But the boatswain 
had given no orders of that kind. He had merely or- 
dered the marine to act according to the usual naval prac- 
tice. The boatswain, in giving the orders, simply acted 
according to the custom of the service. It might be a 
question whether the suppressing of trawling was a duty 
which a Queen's ship should be engaged in ; but if na- 
val officers were sent with a Queen's ship to suppress 
trawling, they could only act according to the rules of 
their own service. If a Queen's ship were sent to catch 
a criminal escaping in a ship, no doubt the naval officer 
in command would be entitled to bring the ship to, ac- 
cording to the ordinary practice of the service. The 
trawlers knew very well that Hawton and Parker be- 



AND CIRCUIT COURTS OF JUSTICIARY. 7 1 

longed to the 'Jackal/ and that by firing blank they n^ 
meant to force them to come a-shore. Beyond all ques- *^*°** 
tion the trawlers were legally bound to obey the signal o«vge 

and to come a-shore. They did not do so, but occupied _ L. 

thcroaelves in sinking their nets. Hawton and Parker jSy 1*. 
had not been reckless. It was not pretended they had 18gl * 
fired into the boat, or that they wished to take life. SSuL 

The Lord Justice-General, in charging the Jury 
said,— A man, when engaged in violation of the law, 
bad lost his life, when there was no legal warrant to 
take his life. It was not alleged that the prisoners had 
fired into the boat with the intention of making their 
shot tell in the boats. The case presented to the Jury 
was, that the prisoners had fired with the view of com- 
pelling the persons in the boat to come to the shore and 
submit to legal authority, but with the intention that 
the shot should not take effect in the boats, but pass 
wide of them. There was no doubt that, on this occa- 
sion, the prisoners went out in the performance of their 
duty, and that they were armed in the usual manner ; 
and also, that the fishermen were at the time engaged 
in on unlawful occupation ; and it was also beyond ques- 
tion that a person in one of these boats had been killed 
by a shot fired by Parker. The question was, were 
either of the prisoners responsible ? 

The prisoners were enlisted in the naval service of 
the country, and were bound to follow the rules of that 
service. It was not necessary to discuss how far the 
employment of persons in the naval service in such a 
duty as suppressing trawling, imported into that em- 
ployment the rules of the naval service. But subordi- 
nate officers or privates were not persons who were en- 
titled to consider whether the rules to which they had 
bom accustomed were imported into this duty, unless 
that were explained to them by their superior officers. 
Que of the prisoners in this case had a certain command, 
the other was in the position of a subordinate ; and it 
was the duty of the subordinate to obey his superior 



72 CASES BEFORE THE HIGH COURT 

^^ officer, unless the order given by his superior was so 

HmwtcnA. flagrantly and violently wrong that no citizen could be 

George be expected to obey it. But that principle extended 

* .also to the other prisoner, the officer then in command, 



jnij 15. because he was there also as a subordinate to fulfil the 



1861. 



duty entrusted to him according to the rules of the ser- 
H^Sdde. ^k®- And, therefore, if, when the prisoners fired the 
shots with the view of making the fishermen yield to 
legal authority, they were acting in accordance with the 
usage of the naval service, they were not guilty of any 
violation of the law. 

But then in doing that it was incumbent on them to 
take due care of the lives of the fishermen ; their object 
in firing was not to produce death or injury, but merely 
to give notice to these persons that they were required 
to submit to the law ; and they were bound to take 
care that the shots fired for that purpose were not so 
carelessly fired as to produce injury or death. 

It was for the Jury to consider, firstly, whether the 
prisoners, in firing first with blank cartridge, and then 
with ball wide of the boats, had acted in accordance 
with the rules of the naval service, as their superior 
officers believed they ought to be practised. And, 
secondly, whether, if they did so, they took reasonable 
care that what they did did not produce injury to the 
persons against whom they were acting. The injury 
which unfortunately did occur might have been acci- 
dental. The shote, however, were fired when it was 
comparatively dark, under circumstances which might 
make the firing more dangerous than it would otherwise 
have been, and therefore the panels should have been 
more than usually cautious. But, on the other hand, 
it was not to be presumed that the prisoners fired reck- 
lessly or carelessly, unless there were evidence to that 
effect. His Lordship charged the Jury, that if they 
were of opinion that the prisoners had acted in accord- 
ance with the rules of the naval service, and had not 
acted carelessly or recklessly, the prisoners were entitled 



AND CIRCUIT COURTS OP JUSTICIARY. 73 

to an acquittal. If, on the other hand, they were of No. 9. 
opinion that they had deviated from the rules of the Hawtcm & 

"William 

service, or that, in acting according to the rules of the G«orge 
service, they had failed to use due caution, they were Parker - 



then bound to give a verdict against the prisoners. ^ 7 ]*. 

Another ground had been a good deal discussed, viz., 186U 
whether it made any difference that the prisoners were H^idcfe. 
on shore, and not at sea. Had they been at sea, it 
would have been their object to stop the progress of 
the boat endeavouring to make away, so as to be able 
to seize it. In this case the object plainly was to make 
the boats come a-shore, because, so long as they remained 
out at sea they were, in the circumstances, beyond the 
execution of the law. No exact precedent had been 
cited ; but the officers under whom the prisoners were 
serving, and Admiral Bamsay, were of opinion that the 
only difference in that case from the ordinary case, 
when both boats were at sea, was, that in the latter 
case it was only necessary that the boats signalled should 
be stopped, but, in the latter, that they should be 
brought to the shore. 

The Jury unanimously returned a verdict of Not 
Guilty. 

The panels were therefore assoilzied simpliciter, and 
dismissed from the Bar. 



74 CASES BEFORE THE HIGH COURT 



Present, 
jnj y 22 Lords Ivory, Cowan, and Ardmillan. 

1861. 

Her Majesty's Advocate— /fetor A.D.—W. Ivory A.D. 

AGAINST 

Mart Miliar or Oatrb — Mwrhead. 

Theft — Plagium — Abduction of a Child— Alternative Charge 
— Relevancy — Procedure. — (1.) The crime of plagium may be 
committed wherever the object of it is a child under puberty ; (2.) 
An indictment charged alternatively with plagium, * the wicked and 
1 felonious abduction from its parents of a female child under the 
4 age of puberty/ said to have been effected * by sedncing, and ea- 
* ticing, and inveigling' her to leave her parents, in whose custody 
she was, without their knowledge or consent. The Court having 
expressed doubts as to the relevancy of such a charge, it was with- 
drawn by the prosecutor; (3.) It is plagium to entice and take 
away a girl, ten years old, from the custody and without die consent 
of her parents, even though the child go willingly, and the purpose 
of the person taking her is to employ her as a servant, or although 
the person taking her may have no intention of appropriating her, 
but means to restore her to her parents in a day or two ; (4.) In 
plagium it is immaterial whether the child said to have been stolen 
have been taken away lucri faciendi causd or not ; (5.) A panel con- 
victed of the theft of a child sentenced to six months 1 imprisonment. 



No. io. Mart Millar or Oates was indicted and accused :— 

Mary Mil- 
lar or 
Oates. That albeit, by the laws of this and of every other well-governed 

High Court realm, Theft, particularly that species of theft called Man-stealing or 

J •fftfi? 2 * Pkgi™ 11 > As also the wicked and felonious Abduction from its parents 

of a female Child under the age of puberty, are crimes of an heinous 



&J? unl ' nature, and severely punishable: Yet true it is and op verity, 
that you the said Mary Millar or Oates are guilty of the crime first 
above libelled, or of the crime second above libelled, actor, or art and 
part : In so far as, on the 12th day of June 1861, or on one or other 
of the days of that month, or of May immediately preceding, in or 
near Cowgate, Edinburgh, you the said Mary Millar or Oates did, 
wickedly and feloniously, steal and theftuously carry away Mary 
Ann Carolan, a female child then nine years and nine months old, or 
thereby, daughter of Bernard Carolan, coal-porter, then and now or 
lately residing in or near Blackfriars Wynd, High Street of Edin- 



AND CIRCUIT COURTS OF JUSTICIARY. 75 

borgh, and of Bridget M'Donald or Cardan, his wife, and then in the No. 10. 
care and lawful custody and possession of the said Bernard Carolan ^JJ ^T 
sad Bridget M'Donald or Carolan, or one or other of them, and then Oates. 
and now or lately residing in family with them in or near Blackfriars High Court 
Wynd aforesaid ; and having so stolen the said Mary Ann Carolan, ^ ^ 

y*m did carry her away to Easter Duddingston, in the parish of Dud- 

Kingston, and county of Edinburgh, and the said Mary Ann Carolan ^tc # ' 
was not discovered till on or about 21st June 1861 at or near Easter 
Duddingston aforesaid, and was then restored to her said parents : Or 
otherwise, time and place both first above libelled, you the said Mary 
Millar or Oates did, wickedly and feloniously, abduct and carry away 
the said Mary Ann Carolan from or out of the custody and possession 
of her said parents, and this you did without their consent, by sedating 
sad enticing and inveigling the said Mary Ann Carolan, without the 
knowledge of her said parents, to leave them, and to accompany you 
to Easter Duddingston aforesaid, you falsely and fraudulently holding 
out and promising to the said Mary Ann Carolan that you wotdd give 
ker money, and bring her home that night, or falsely and fraudulently 
making other promises to the said Mary Ann Carolan to the prosecu- 
tor unknown, for the purpose of inducing her to leave her said parents 
and go with you : And the said Mary Ann Carolan having been so 
abducted, was not discovered till on or about the 21st June 1861 at 
or near Easter Duddingston aforesaid, and was then restored to her 
sud parents. 

Mcimead, for the panel, objected to the relevancy 
of both charges in the indictment — 1. It appeared on 
the face of the libel, that the child alleged to have been 
stolen was a girl of nine years and nine months old. A 
child of that age could not be the object of plagium. 
Hume (vol. i. p. 84), limited the crime to ' the away* 
' taking of an infant child.' And the principle upon which 
the taking away of such a child is dealt with as theft, 
he explained thus : ' For, in this instance, the creature 
' taken, which has no will ofits own, is aaa thing under 
' the care and in the possession of others from whom it 
' is taken ; and to whom, without any violence, it may 
' be said, and in common language is said, to belong/ 
But a child ten years old was not an infant ; neither 
could it be said to be ' a thing having no will of its own. 9 
la the previous cases in which plagium had been libel- 
led, the child said to have been stolen was truly an in- 



76 CASES BEFORE THE HIGH COURT 

M^Mii- ** n *> exce P* * n thaA of Margaret MacmiUan or Branaghan, 

5«£ Glasgow, Sept. 1839 (Bell's Notes, p. 26) where the 

High Court, charge of plagium was passed from, and that of Smith, 

J^ 22 - 16th July 1829 (Alison, vol. i. p. 630), in which latter 

Plagium, case the age of the child was nine. Informations on the 

** relevancy were ordered in that case, but, owing to the 

flight of the panel, were not proceeded with, so that the 

point was still an open one. 

Lord Ivory. — When do you say that infancy ends ? 

Muirhead. — At the age of seven. After that age a 
child is, in law, considered to have a will of its own, and 
so to be capos dolt, responsible for crime, and amenable 
to justice. 

2. The alternative charge of abduction was equally 
objectionable. The word itself was not a nomen Juris 
in the law of Scotland, and was unknown in that of 
Borne ; it was borrowed from the criminal law of Eng- 
land. The crime of abduction, according to the law of 
^England, consisted in carrying off a minor female by 
% force, and with the ulterior object of marriage or viola- 
tion of her person. Unless all that were proved, the 
crime of abduction was not committed. Now, while the 
major proposition charged the abduction of a female 
child under the age of puberty, it appeared from the 
minor, that neither was the abduction forcible, nor was 
there an ulterior unlawful purpose in view. Not only 
was force not averred, but the consent of the child was, 
by implication, admitted in the words e seducing, en- 
' ticing, and inveigling.' How could that be abduction ? 
The only place in which Hume mentioned the word 
was in a paragraph treating c of forcible abduction and 
' marriage/ (Com. vol. i. p. 310). The only case in the 
books of a charge at all resembling the present was that 
of Branaghan, already referred to (Bell's Notes, p. 26) ; 
but there the relevancy did not seem to have been dis- 
cussed. It was a contradiction in terms to speak of the 
abduction of a child capable of admittedly consenting 
to go with the alleged abducer ; the charge contained no 



AND CIRCUIT C0UBT8 OF JUSTICIARY. 77 

averment that the purpose of the abduction was unlaw- No. 10. 
fill or improper. A child of ten years old might herself uJ r " 
be placed at the bar on the charge of stealing or carry- 0ates * 
ing away a child under seven ; and if it were proved ^^22/* 
against her, the law would hold her responsible for her 186U 
crime, and punish her accordingly. If she had reason Pl jgj ,a * 
enough to be punishable for taking away a child from 
ite parents, she had reason enough to judge whether or 
not she herself ought to go away from her own parents, 
and her consent deprived the taking her away of the 
quality of criminality. 

Hector, for the prosecution — 1. The charge of plagium 
was in the usual form. It is the same as that in the 
case of Helen Wade, Glasgow, October 2. 1844, Broun, 
vol. ii. p. 288 ; Marion Rosmond or Skeoch, Glasgow, 
Sept. 26. 1855, Irvine, vol. ii. p. 234. It was quite true 
that in most instances of the charge the theft was of an 
infant ; but in the case of Helen Torrenee and John WaMie, 
February 2, 1752 (Maclaurin, 152), the indictment 
charged ' the stealing or away -taking of a living child/ 
nine years old. A general interlocutor of relevancy was 
pronounced, and the panels were convicted of ' stealing 
' the child, and soon thereafter selling and delivering 
' its body, then dead, to some surgeons/ and were sen- 
tenced to death. In the case of Aitkenhead, September 
1831 (unreported), in which the indictment was drawn 
by Lord Ivory, plagium was charged, though the child 
stolen was ten years old ; and in Branaghan's case, in 
which also plagium was libelled, the child was eleven. 

2. In the alternative charge of abduction the prece- 
dents had likewise been followed. The objection stated 
to that charge was, that the abduction was not averred 
to have been forcible. In the case of Aitkenhead, no 
doubt, force was libelled ; but there the charge was the 
forcible abduction of any of the lieges. But in the case 
of Branaghan, the phraseology was almost exactly the 
same as in the libel under discussion. It was quite un- 
necessary to libel force or violence where the object of 



78 CASES BEFORE THE HIGH COURT 

Motmu- *ke cr ^ me was a child under puberty, who had in law no 
Jg ™ will of her own, and as to whom any taking of her away 

High Court mus ' ^ regarded as forcible, though no violence was 
July 23. used. A child under the age of puberty was held inca • 

— pable of consenting to anything done to its own pre- 

"fr* judice. 

Muibhead, for the panel. — In the cases of Wade and 
Skeoch, the children said to have been stolen were re- 
spectively three and three and a half years old. Tor- 
rence and Waldie was a very peculiar case ; for there 
the child stolen actually became a thing while still in 
the hands of the men who stole it The fact that the 
dead body of the child had soon afterwards been sold 
by the same persons to some surgeons for dissection, 
was set forth in the indictment, and no doubt present 
to the mind of the Court in pronouncing the interlocu- 
tor of relevancy. In Aitkenhead in 1831, and Brana- 
ghan in 1839, though plagium was libelled, the charge 
appeared in both cases to have been passed from, upon 
a plea of guilty of the alternative charge of abduction. 
The case of Aitkenhead afforded no precedent for this 
alternative charge of abduction, for there force was ex- 
pressly libelled. The only precedent the prosecutor 
could found on was that of Branaghan ; but a single in- 
dictment, which did not seem to have undergone dis- 
cussion, could not be said to have settled the law. 

Lord Cowan was of opinion that the first objection 
ought to be repelled. According to his view, it was a 
fundamental principle of the law of Scotland, that a 
child under the age of puberty could give no consent to 
anything done to its injury. He was quite satisfied, 
though he could not recal them at the moment, that 
cases of plagium had been tried before him at Circuit, 
in which the children stolen were above the age of 
seven. At any rate, the cases of Torrence and Waldie, 
Aitkenhead and Branaghan, ware direct authorities. 
The indictment in the latter was drawn by the late Lord 
Handyside, a most careful and well instructed criminal 



AND CIRCUIT COURTS OF JUSTICIARY. 79 

jurist, who was not likely to have made a mistake in m*^ 1 ^ 
such a matter of principle. With regard to the alterna- jjr« 
tire charge of abduction he had more difficulty ; and he m hConrt 
would rather avoid expressing an opinion upon it, un- *£«. 
less that were absolutely necessary. pi»ginm, " 

Heotob, for the prosecution, stated, that it was very *°- 
desirable the Court would express their opinion on the 
relevancy of the second charge. 

Lord Cowan, if he must give an opinion, was 
not prepared to say the charge was irrelevant. As at 
present advised, he thought he could not hold that after 
the case of Branaghan. But he had great doubts of its 
utility ; and he would not recommend that it should be 
followed as a precedent. 

Lord ArpmttJiAn was of opinion that the objections 
taken by the panel are very serious indeed ; for they 
amounted to nothing less than this — that, admitting 
the panel to have done all that she was accused of, die 
had committed no crime. He would be infinitely con- 
cerned were that a true representation of the state of 
matters under the law of Scotland ; but in his opinion 
it was not. He concurred with Lord Cowan that the 
consent of a child of ten years of age to the theft of itself 
was of no avail to the person committing the theft, and 
that a child in pupilarity, equally with one in infancy, 
was incapable of giving consent to anything done to 
its own prejudice. The charge of abduction, however, 
caused him some difficulty. It did not appear to him 
to raise anything not covered by the charge of plagium. 
An alternative charge of that sort ought to be avoided ; 
it could only tend to confusion and possible misappre- 
hension. At the same time, he could not say that it 
was irrelevant. 

Lord Ivobt. — As their Lordships seemed to be unani- 
mous, his views could not influence their position. He 
might state, however, that he quite concurred with 
them as to the first charge. The case of Torrence and 
Waldie in 1752 was sufficient precedent without later 



80 CASES BEFORE THE HIGH COURT 

mot Mil- au ^ lor i^ e6 ^ although he too had an impression that 
iar or cases had occurred recently on Circuit of theft of children 

Oatea. 

— - — — over seven years old. The law recognised no term un- 
Juiy 22. der puberty at which the consent of a child could change 
p * — the character of a crime. Thus, not only is it rape to 
Ae. ' have connexion with a girl under puberty even with 
her consent, it is also a crime to carry on indecent prac- 
tices with her, even though she be a party to them. 
While thus concurring with their Lordships as to the 
relevancy of the charge of plagium, he dissented from 
their opinions upon the charge of abduction, and would 
have been unable to sustain the relevancy without fuller 
argument. 

Lord Cowan.— All the length he went was to ex- 
press his unwillingness to say the charge was irrelevant, 
but he had great hesitation ; and he would be well 
pleased to have the question more fully argued, if a 
decision upon it were necessary. 

Hector, for the prosecution, — after what had fallen 
from the Bench, would withdraw the charge of abduc- 
tion. 

The charge of plagium was thereupon found relevant, 
and the prisoner pleaded not guilty. 

It appeared from the evidence that the panel, a woman 
of twenty-five years of age, whose husband had for ten 
years been stone deaf, and who had three young children, 
was a field-labourer, and resided in the village of Easter 
Duddingston. She had once or twice mentioned to a 
neighbour that she intended to get a young girl to take 
charge of her house and bairns while she was out at 
work. Her husband worked in a quarry some distance 
from his house, to which he did not return until late in 
the evening. While passing along the Cowgate of Edin- 
burgh, on Wednesday the 12th June, about eight o'clock 
in the evening, the panel accosted four or five young 
girls, who were talking together, and asked them if they 
knew where she could get a girl to mind a bairn, two 
or three miles out of the country. One of them pointed 



AND CIRCUIT COURTS OF JUSTICIARY. 81 

out Carolan, and said she would go. It appeared that J* * ">. 
Carolan, who was about ten years old, had previously i«r or 
been in a place, and had told her companion that she hConrL 
wanted to get another. Carolan at first objected, say- %J J 2 - 
ing she had to mind a little brother. The panel asked 



1861. 



Plagium, 

her if she had any parents, and she said she had a && 
mother, but that she was out working ; whereupon the 
panel said it did not matter, as, if Carolan would go 
with her, she (the panel) would come in again on Sa- 
turday, and settle with her mother, who would be quite 
pleased to get the money. A difficulty about clothes 
was got over in the same way ; and eventually Carolan 
went away with the panel, quite willingly, and ap- 
parently well pleased. Carolan deponed, that on the 
way to Duddingston, she frequently expressed a wish 
to return, but was told by the panel to hold her tongue, 
that her mother would be quite pleased, &c, and that 
on reaching Duddingston, the panel went into a neigh- 
bour's house for her children, whom she took with her to 
her own. She further deponed, that next morning the 
panel made her take charge of the bairn, notwithstand- 
ing her complaints ; and that the panel always locked 
the house door in going out, so as to prevent her run- 
ning away. Neighbours of the panel, however, deponed, 
that they had never seen the door locked ; that Carolan 
was always going about the doors with the children; 
that she had been two or three times to Joppa and Fisher- 
row on messages alone ; that she went every morning for 
water to a well at the head of the village, from which 
Edinburgh was visible ; that she never made any com- 
plaints of being detained against her will, but, on the 
contrary, seemed always romping and happy. The panel 
was apprehended in her own house in the middle of the 
night on the 21st and 22d June, when she explained to 
the officer that she had been unable to get to Edinburgh 
on the previous Saturday, according to promise ; but 
that she intended to go to town the next day (Saturday) 

VOL. IV. F 



82 CASKS BEFORE THE HIGH COURT 

m£r am- *° seM * e w **k t ' le ^ s mother - She Repeated the same 
iar op statement in her declaration. 

' Hector, for the prosecution, asked a verdict on the 

July 22. charge of plagium. 

. * Muirhead, for the panel, said — There could be no 
&e. ' doubt the panel had taken away the girl 'without the 
consent of her parents, in so doing she had been guilty 
of a very grave indiscretion. What was charged against 
her, however, was the theft of the child ; and it was for the 
jury to consider whether, straining the evidence to the 
very utmost, it would support such a charge. To warrant 
a verdict of guilty, they must be satisfied that the panel 
took the girl away with a felonious and theftuous pur- 
pose, intending to appropriate her — in other words, to 
retain her and make use of her as if she were a child of 
her own. They must be satisfied, too, that the child 
was taken away for the sake of making gain of her. 
These were two necessary ingredients of the crime of 
child-stealing ; yet, in the present casie, both were ab- 
sent. For it appeared clearly from the evidence that 
the taking of the girl was with the perfectly honest pur- 
pose of employing her as a servant, paying her wages for 
her service ; and there could be little doubt that had the 
panel had an opportunity of settling with the girl's 
mother, and the latter had expressed any objection to 
her daughter's absence, the latter would at once have 
been sent home. 

Lord Ivory, in charging the Jury, said — The case 
was a very simple one upon the evidence; but the 
statement of the law suggested for the panel was erro- 
neous. It was of no consequence whether or not the 
panel meant to restore the child to her parents in a few 
days or weeks or not ; that she did not mean to retain 
her as if she were her own. It was not a man's ulti- 
mate intention, but his present act, that was to be con- 
sidered. Thus, in the case of Dr Dodd, when he com- 
mitted the forgery for which he was executed, he en- 
tertained the confident belief that before it could be 



AND CIACUIT DOUBTS OF JUgTlCIABY. 83 

brought to light, he would be able to replace, as in fact ^l 1 ^. 
he did, the money which he had raked by means of it, *££ 
and so no one would ultimately be defrauded ; yet that m hConrt 
was considered no good defence. And the same prin- J«Jy22. 
ciple had over and over again been given effect to in 



cases of theft, where the plea now maintained for the &©. 
panel had been set up without success. Nor did it 
matter at all whether the panel meant directly to make 
pecuniary gain of the child. If she had hired the girl 
oat to one of her neighbours, and put the money in her 
own pocket which she received for the girl's services, 
what difference in principle would there have been be- 
tween that and the present case ? She substantially made 
gab of her by employing her as a servant ; for there was 
no proof, save her own assertion, that she had ever any 
intention of giving the girl wages for her services, were 
that of any importance. These considerations were of 
no weight whatever. All that was to be considered 
was theamotio, — fthe original taking away. If the Jury 
were satisfied that the child was carried or enticed away 
from the custody of her parents, to whom she might be 
said to belong, and without their knowledge or consent, 
then they must find the prisoner guilty of plagium. 
The Jury returned a verdict of guilty as libelled. 

Sentence in the circumstances of the case, six months' 
imprisonment. 



84 CASES BEFORE THE HIGH COURT 

NORTH CIRCUIT. 

PERTH. 

Sept. 11. Judges — Lords Deas and Neayes. 

1861. 

Elizabeth Baxter, Appellant — Scott 

AGAINST 

William Kennedy, Respondent— Thorns. 

Appeal to Circuit Court — Process — Small Debt Decree — Proof 
— 1 Vict. c. 41. — An appeal to the Circuit Court of Justiciary 
against a small debt decree dismissed, in respect the appellant pro- 
duced no certified copy of the decree, or proof that it had been pro- 
nounced. 

No. u. Ik an appeal to the Circuit Court of Justiciary at 
Kennedy. Perth, against a small debt decree, pronounced by the 
Perth. Sheriff-substitute of Forfarshire, 

8 Tml* Thoms, for the respondent, argued that there -was no 
Appeal, process, no certified copy or other evidence of the de- 
cree having been produced. 

Scott, for the Appellant — The decree was in the re- 
spondent's favour ; he only was entitled to an extract 
of it, and he was the party who should have produced 
it. By 13th section of the Small Debt Act, 1 Vict. c. 
41, the decree had to be appended to the summons ; 
and by the 17th section, it, with other decrees, had to 
be entered in a book by the Sheriff-clerk. He, quoad 
this process, was the clerk of the Court of Appeal also ; 
and therefore the decree was already in manibus curia. 
Lord Deas thought the copy of the decree in the 
books was not equivalent to the decree, being merely a 
memorandum of the judgment ; but it was not necessary 
to decide that. The decree itself was, under section 13 
of the Act, annexed to the summons, in the form of 
schedule A of the Act, and that decree, on being signed 



AND CIRCUIT COURTS OF JUSTICIARY. 85 

by the clerk, was declared to be a warrant for diligence. j£^ 
There was no evidence before the Court that any such Kennedy. 
decree had been pronounced as the Court were asked to Perth. 

i-i tii j* Sept. 11. 

review. For anything that appeared, the decree of the i86i. 
Sheriff-substitute might have been in favour of the ap- Appeal, 
pellant. There was, therefore, no need to go further 
with the case. 

Lord Neaves had a strong impression that the book 
was not the final decree, but that the Court were not 
called on to decide. His Lordship concurred with Lord 
Deaa. 

The Court accordingly dismissed the appeal. 

J. D. GmAXT, Writer, Dundee— Ruth & Less, Writers, Dundee— Agents. 



INVERNESS. Sept 24. 

1861. 

Autumn 1861. 

Judge — Lord Neayes. 

Heb Majesty's Advocate — Mattland-Heriot, A.D. 

AGAINST No 12 

Anns 

Angus Macfhebson and John Stewart — A. Nicolson. Mcpher- 

son and 

John Stew- 
Culfable Homicide — Indictment — Relevancy — Modus. — An Ob "*» 
jection to the relevancy of an indictment, charging culpable homi- Inverness, 
cide by running down a fishing-boat, whereby three parties in the i$%\ m ' 
same were drowned ; that the libel was too general, and did not suf- c . .. 
fieiently specify wherein the culpability consisted — repelled. Homicide. 

Angus Macfhebson and John Stewart, both boatmen, 
were charged with the crime of Culpable Homicide: — 

hi so far as, time after libelled, you the said Angus MacPherson 
and John Stewart being in a smack or sloop-rigged boat or other boat, 
the property of Finlay Mackenzie, boat-builder, now or lately residing 
ift Portree in the parish of Portree, and shire of Inverness, or being 



86 CASES BEFORE THE HIGH COURT 

No. 12. the property of you the and Aligns MaePherson and John Stewart, 

MAcf? - OT °f one or °* ner °f 7 ou 9 or °* 8ome other person to the proseeuier un- 

flon and known, the said smack or boat being under the charge of yon the said 

JohnStew- ^g^ MaePherson and John Stewart, or one or other of yon, and pro- 

ceeding under sail from or from near Sconser, in the parish of Portree 

Sept 24. aforesaid, to or towards Portree aforesaid, or proceeding northwards in 
lft6 *« or near the Sound of Raasay after libelled, you the said Angus Mac- 
Culpable Pherson and John Stewart did, both and each, or one or other of you, 
Homicide. on tho night of ^ 3^ or morning f tne 4th, day of July 1861, or 

on one or other of the days of that month, or of June immediately pre- 
ceding, or of August immediately following, in or near the Sound of 
Raasay, situated between the islands of Skye and Raasay, all in the 
shire of Inverness aforesaid, and at or near a part of the same situated 
about half-a-mile, or other short distance, in a south-westerly or south- 
erly or westerly direction, from a place known or called by the name of 
Skeir Crapach or Skeir Oskaig, or at or near some other part of the 
said Sound of Raasay, the particular place being to the prosecutor un- 
known, navigate, direct, manage, or steer, the said smack or boat in a 
culpable, negligent, and reckless manner, and without due regard to the 
safety of persons in other boats fishing or otherwise engaged in or near 
the said Sound of Raasay, and in consequence thereof did cause or per- 
mit the said smack or boat under your charge as aforesaid, or some part 
of it, or something connected with it, to come against, run down, and 
sink a fishing-boat or other boat, the property of John Finlayson, fisher- 
man, then or lately before residing at or near fialmeanach, in the parish 
of Portree, and shire aforesaid, or of some other person to the prosecu- 
tor unknown, then lying in or near said Sound, having attached thereto 
a train or number of herring-nets shot or placed in or near said Sound ; 
by all which, or part thereof the said John Finlayson, and Donald 
Finlayson and Alexander Finlayson, both fishermen, then or lately be- 
fore residing at or near Balmeanach aforesaid, being at the time in said 
fishing-boat or other boat engaged in fishing, or otherwise engaged, 
were, all and each or one or more of them, then and there immersed in 
the water in or near said Sound, and drowned and bereaved of life, and 
the said John Finlayson, Donald Finlayson, and Alexander Finlayson, 
or one or more of them, were thus culpably killed by you the said An- 
gus MaePherson and John Stewart, or one or other of you. 

Nicoison, for the panels, objected to the relevancy of 
the libel, that the indictment contained no specification 
of the mode or manner in which the offence was com- 
mitted ; that it was too vague, and did not contain any 
precise statement showing wherein the culpability con- 
sisted. In housebreaking, it was necessary to state the 



AND OIBCUIT COURTS OF JUSTICIARY. 87 

modu$ 9 as that the windows had been forced open, or JjJ-J* 
the door picked, and in assaults it was necessary to state m**™*- 
how they were committed, as by using a knife, a blud- John stew 

geon, or the fist, &c. The libel here should state that 

the boat under charge of the panels was going too fast, Sept. 24. 

or that there was no look-out kept, or such other parti- — 

cular, showing wherein the recklessness consisted. See HoiSade. 
cue of Ezehiel M*HaJte, High Court of Admiralty, 
Nov. 26, 1827. Syme's Justiciary Cases, App. No. iii. 

The Advocate-Depute replied, that Alison, yol. i. p. 
627, states this offence as being the same as culpable or 
reckless driving on shore. This libel, though somewhat 
new, was framed on similar principles as such cases of 
culpable or reckless driving on land, referred to various 
cases, and that if it were to be held that a specification 
such as was pointed at must be given, it might be im- 
possible to try such a case when the offence is commit- 
ted in the middle of the night on the sea, and where no 
one was very near but the three parties who were 
drowned, and the two accused parties at the bar. 

Lord Neaves. — Every case depends on its own cir- 
cumstances. It is stated in this libel, that the boat 
under the charge of the panels was in motion, proceed- 
ing under sail, and that the other boat was at rest. The 
two did not come into mutual collision, when it might 
have been necessary to give such a specification as to 
show which of the two boats was culpably managed or 
steered. The presumption must be, I should think, 
that any other boat that comes in contact with a sta- 
tionary boat is culpably managed or steered. If the facts 
as stated are proved, I should think that you in charge 
of tlje steering and moving vessel are to blame. The 
case is quite analogous to that of culpable and reckless 
or furious driving on shore, and this libel is framed in 
accordance with the usuql style of such libels. On this 
very cpcqit at Aberdeen, we had a case Qf Watt charged 
with culpable and reckless and furious driving, who 
pleaded guilty to the charge of culpable and reckless 



88 CASKS BEFORE THE HIGH COURT 

amm> dri v u*& and not to furious driving, which last might be 
MaePber- qq^ to contain the specification of the offence. If a 

flon and 

John jstew- vessel is moored, any other vessel that comes up must 
keep clear, and is responsible for any collision that takes 



art 



InTerneea. , 

sept. 24. place. 

1861 



Culpable . 

Homicide, relevant. 



The objection was repelled, and the indictment found 



Thereafter, Angus MacPherson pleaded guilty, and 
John Stewart pleaded not guilty, which pleas were ac- 
cepted by the Advocate- Depute. 

The Court sentenced MacPherson to three months' 
imprisonment. 



Judge — Lord Neaveb. 
Her Majesty's Advocate — MatUand-Heriot, A.D. 

AGAINST 

Alexander M'Kay — A. Nicolion. 

Indictment — Post-Office Offences — 1st Vict., c. 36, sect. 27, 28— 
Relevancy. — Held competent to libel on a contravention of the 27th 
section of the statute, charging the theft of a post-letter, in addition 
to a contravention of the 28th section, charging the stealing a poet- 
letter from a post-letter bag. 

Alexander Mackay, prisoner in the prison of Ding- 
M<Kay ., wall was indicted and accused, — 

Inreraett. 
Sept. 24. 
1861. That albeit, by an Act passed in the first year of the reign of Her 

Contraren. present Majesty Queen Victoria, chapter thirty-sixth, intituled, ' An 

36 627^28 * ^ c * * or GOMolidating ^ ne l* ws relative to offences against the Post- 

" « Office of the United Kingdom, and for regulating the judicial admi- 

* nistration of the Post-Office laws, and for explaining certain terms 

* and expressions employed in those laws/ it is enacted, by section 
twenty-seventh, ( That every person who shall steal from or out of a 
4 post-letter any chattel or money or valuable security, shall in Eng- 
' land and Ireland be guilty of felony, and in Scotland of a high crime 



No. IS. 



AND CIRCUIT COURTS OP JUSTICIARY. 89 

1 and offence, and shall be transported beyond the seas for life :' And No. 13. 
by section 28th, it is enacted, ( That every person who shall steal a M'Kay. 
4 post-letter bag, or a post-letter from a post-letter bag, or shall steal InTOT1|f|tB 
1 a post-letter from a Post-Office, or from an officer of the Post-Office, Sept 24. 
1 or from a mail, or shall stop a mail with intent to rob or search the 



, shall in England and Ireland be guilty of felony, and in Scot- ^"S^T* 11, 
1 land of a high crime and offence, and shall be transported beyond 3^ g 27,28. 
4 the seas for life :' And by section forty-first of the said Act, it is 
enacted, * That every person convicted of any offence for which the 
1 punishment of transportation for life is herein awarded, shall be liable 
1 to be transported beyond the seas for life, or for any term not less 
4 than seven years, or to be imprisoned for any term not exceeding 
4 four years :' And albeit, by the laws of this and of every other 
well-governed realm, Theft is a crime of an heinous nature, and 
severely punishable : Yet true it is and of verity, that you the 
said Alexander M'Kay are guilty of the high crime and offence set 
forth in the said 27th section of the said statute above libelled, and of 
the high crime and offence of stealing a post-letter from a post-letter 
bag, set forth in the said twenty-eighth section of the said statute 
above libelled, or of one or other of the said high crimes and offences, 
actor, or art and part, or, as alternative to the said two charges above 
libelled, of the said crime of theft at common law, actor, or art and 
part: In so far as (1.), on the 16th, 17th, 18th, or 19th day of 
February 1861, or on one or other of the days of that month, or of 
January immediately preceding, or of March immediately following, 
within or near the post-office at Aultbea, in the parish of Gairloch, 
and county of Ross, then and now or lately occupied by William 
Mackay, postmaster, now or lately residing at Teanafiline, in the said 
parish and county, you the said Alevander Mackay did, wickedly and 
feloniously, open a post-letter bag, being the post-letter bag, or a post- 
letter bag, between Stornoway, in the parish of Stornoway, and in 
the island of Lewis, and county of Ross, and Dingwall, in the said 
county of Ross, and did, wickedly and feloniously, steal and theftuously 
away take therefrom a post-letter, having thereon, or on the envelope 
or cover thereof, the following or a similar address : — 

* Money order Remittance 
1 Harris 
' Francis Abbott Esq 
' For the Accountant 

4 General Post Office 
< Edinburgh,' 

the property, or in the lawful possession, of Her Majesty's Postmaster- 
General, which letter then contained sixteen bank or banker's notes 
for £l sterling each, or thereby, and £3 sterling in silver money, or 



90 CA339 BRFOEB THE HtQH COURT 

No. 13, thereby, the property, or in the lawful possession, of Her Majesty's 
*$£*?!** Postmaster-Genial : Fubthbr (2.), time and place above libelled, 

- you the said Alexander Maekay did, wickedly and feloniously, steal and 

Sept 24. theftoously away take, froin or out of the post-letter above libelled, the 
1861 « sixteen bank or banker's notes for £1 sterling each and £3 sterling in 
CoatntTea. silver money, above libelled, or thereby, the property, or in the lawful 
36^ § 27^28! P 06866 *^ °* Her Majesty's Postmaster-General: Or Otherwise 
(8.), as alternative to the said two charges above libelled, you the said 
Alexander M'Kay did, time and plaoe above libelled, wickedly and 
feloniously, steal and theftuonsly away take, from or out of the post- 
letter bag above libelled, the letter above libelled, the sixteen bank or 
banker's notes for one pound sterling each above libelled,for part 
thereof and the three pounds sterling in silver money'above HbeUed, 
or part thereof, all the property, or in the lawful possession, of Her 
Majesty's Postmaster-General, or the property of Roderick Maekay, 
then and now or lately sub-postmaster, or now or lately shopkeeper, 
at Tarbert, in the parish of Harris, and county of Inverness, or of 
Francis Abbott, Edinburgh, or of one or more of them. 



Nicolson objected to the relevancy of the indictment, 
in respect that it charged the panel not merely with 
stealing the letter from the post-bag, but also with steal- 
ing the letter and contents ; that it was incompetent 
to charge the panel for two offences for stealing one 
letter ; that no similar case existed. 

The Advocate- Depute answered, that he was not 
aware of any similar case, but that the two offences 
were different and distinct ; the one charged the panel 
with tampering with, opening a post lett?r-bag, and 
stealing a letter from the same ; the other, with there- 
after opening the letter, and stealing the contents of 
the letter. 

Lord Neaves. — There are two offences charged, the 
one a contravention of the 27th section, and also of the 
28th. The minor charge reverses the order of the 
charges, but that does not affect the question at issue. 
It seems to me that the libel, and the mode of stating 
the offence, is strictly logical and correct. If the panel 
opened the letter-bag and removed the letter an inch, 
he committed the one offence. If he then opens the 



and cimctrir couts of justiciary. 91 

letter, and takes away the money, he commits the A ££^*^ 

Other. M'Kay. 

The objection was repelled, and the indictment found In <7 ern £f- 
relevant. mm- 

ContraYOB. 

Iitt VW*fc c 

Thereafter the panel pleaded guilty to the two first 36,§27,V. 
charges, and was sentenced to four years Penal Servi- 
tude. 



Her Majesty's Advocate — Maitland-Ueriot A.D. g/ ^ 

1861. 
AGAINST 

Alexandria or Lexy Clark and Jane M'Kay. — W* A. Brown. 

Child-Murder — Indictment — Relevancy — Modus. — In a charge 
of child-murder, after a specific description of the modus, was an 
alternative statement, * or did in some other way to the prosecutor 
4 unknown, maltreat the said child.' Objection to these words as 
not sufficiently specific, repelled. 

Alexandrina or Lexy Clark and Jane M'Kay were 

charged with the crime of Child-murder : — Alexandri- 

na or Lexy 

In so far as, on the 13th or 14th day of May 1861, or on one or j ane 
other of the days of that month, or of April immediately preceding, M'Kay. 
or of June immediately following, within or near the house at Mid Inverness. 
Ctyth, in the parish of Latheron, and shire of Caithness, then oc- $$\ ' 
copied by you the said Alexandria or Lexy Clark, you the said — c ..., 
Aiexandrraa or Lexy Clark, having been delivered of a living Murder, 
male child, you the said Alexandria or Lexy Clark and Jane 
M'Kay did, both and each or one or other of you, immediately or soon 
after the birth of the said child, then and there, wickedly and felo- 
niously, attack and assault the said child, and did compress or cover 
up its mouth and nostrils with your hands, or with some other article 
or substance to the prosecutor unknown, obstruct its breathing, and 
did choke or suffocate the said child, or did in some other way to the 
prosecutor unknown, maltreat the said child, by all which, or part 
thereof, you the said Alexandrina or Lexy Clark and Jane M'Kay 
did, both and each or one or other of you, bereave the said child of life, 
and the said child was thus murdered by you the said Alexandrina or 
Lexy Clark and Jane M'Kay, or one or other of you. 



92 CASES BEFORE THE HIGH COURT 

Aieradri- Brown, for the panel, objected to the relevancy. 

na or Lexy The indictment sets forth the mode of the death, and 

jane then proceeds with such general words as would permit 

-^- the prosecutor to state any other mode of violence, and 

Trnmrnrim 

Sept. 25. referred to case of Ann M'Que, High Court, Feb. 20, 
^ i860, Irvine, vol. iii. p. 532. 

Murder. Majtiand-Heeiot, for the prosecution, answered, — 
The words objected were inserted on the suggestion of 
the Lord Justice-Clerk Hope, in the case of Mary Wood, 
High Court, Nov. 7, 1856, Irvine, vol. ii. p. 497, and 
are intended to cover any slight variation in the man- 
ner of committing the kind of murder stated. He re- 
ferred to the indictment sustained in M'Que's case, 
March 12, 1860, Irvine, vol. iii. p. 678, which takes a 
much wider latitude than is taken here. 

Lord Neaves repelled the objection. The prosecutor 
must cpnfine himself to the kind of murder stated by 
choking or suffocation. If he proceeded to prove a mur- 
der by cutting the child's throat, that might not be 
allowed under this libel ; and at any rate, the prosecu- 
tor, if he proceeded to prove that by his own witnesses, 
could not say that was a mode ' to the prosecutor un- 
' known.' 

The objection was repelled, and the indictment found 
relevant. 

The prisoners both pleaded not guilty. After a length- 
ened trial, the Jury found Alexandrina or Lexy Clark 
guilty of culpable homicide, and Jane M'Kay not guilty. 

Thereafter the Court sentenced Alexandrina or Lexy 
Clark to three years 1 penal servitude. 



AND CIRCUIT COURTS OF JUSTICIARY. 93 

WEST CIRCUIT. 

GLASGOW. Sept 26. 

1861- 

Judge— Tub Lord Justice-Clerk. 
Her Majesty's Advocate, — Shand A. D. 

AGAINST 

Donald Turner — John Morison. 

Panel — Deaf and Dumb — Procedure. — Procedure adopted where a 
panel was deaf and dumb. 

Donald Turner was charged with the crime of Theft, 2«id 

especially when committed by a person who has been Tomer. 

previously convicted of theft. £ lMg0W * 

The panel being deaf and dumb, the procedure was i86i. * 

88 follows : Theft, *e. 

James Laurie, a teacher of the Deaf and Dumb In- 
stitution, was sworn, and deponed, I have been a teacher 
in the institution for eleven years : I am familiar with the 
mode of communicating with such persons as the panel 
by the language of signs. I know the panel — he was a 
pupil in the institution. I had no difficulty in commu- 
nicating with him at that time, and shall have no diffi- 
culty in explaining to him the questions which the Court 
may wish to put to him. The panel is a very intelli- 
gent person, — he can read and write. 

At the desire of the Court, the interpreter explained 
to the panel that he was charged with stealing the 
articles libelled, at the time and place set forth in the 
indictment, and that he had been previously convicted 
of theft. The interpreter was also desired to ask the 
panel, whether or not he pleaded guilty to the charge. 

The interpreter reported that he had done so, and 
that the panel pleaded guilty. 

It was then explained to the panel through the in- 
terpreter, that he must sign the confession, and he 



94 CASES BEFORE THE HIGH COURT 

No. 15. having done so, it was similarly explained to him that 

Turner, the sentence of the Court was fifteen months' imprison- 

Giaagow. ment, and that it proceeded on his confession of guilt, 

mi. " and on the previous conviction. 1 

Theft, Ac. 



Judge — Lord Ivory. 
Her Majesty's Advocate — Moncrieff A.D. 

AGAINST 

Robert Pattison — Millar. 

Process — Insanity — Medical Witness, — Procedure to .be followed 
in a criminal case when medical witnesses, who have been permitted 
to remain in Court to hear the -evidence on a plea of insanity, de- 
sire questions to be put to the other witnesses in the course of exa- 
mination. 

itobl 6 ' Counsel for the panel, who was accused of murder, 
PattiBon. pleaded that he was insane. at the time of the offence. 
GUwgow. On the motion of the Crown, and with the consent of 

Sop*. 2o. 

i86i. the panel's counsel, the medical witnesses on both aides 



Murder were permitted to remain in-Court to hear the non-sne- 
dical testimony. 

At the conclusion of the examination of one of the 
witnesses for the Crown, a medical witness jfor the de- 
fence suggested to the Court an additional question 
which he wished to be put. 

tLoBD Ivory (after consulting with the Lord Justice- 
Clerk), isaid — That this was a novelty, and that it would 
be an inconveni&nt mode of procedure, if the medical 
witnesses, who were permitted to be present to hear 



1 The authorities referred to as regulating procedure in such cases, 
were Campbell or Bruce, 1817, Hume, vol. i. p. 45, note ; Hugh Ross, 
1818, Hume, v<d. ii. p. 278, note; David Smith, 1841, Bell's Notes 
*o Hume, p. 231, Swinton, vol. ii. p. 547. 



AND CIECUIT COURTS OF JUSTICIARY. 95 

only, were publicly to take part in the proceedings ; and n* i«. 

that, if any of them desired & question to be put, the f**£. 

proper course would be for the medical man to commu- Qhwgow. 

nicate it to the counsel for the party summoning him, S Sw?" 

who might then adopt it a* his own question if he Mtu*»r. 
thought proper. 



Judges — The Lord Justice-Clerk and LbRD Ivory. 
Her Majesty's Advocate — Shand A. D. 

AGAfNdT 

Patrick Ahdbrson — Hamilton. 

Wiltol Fire-raising — Attempt to Commit Wilful Pire^riistnq 
-^-Indictment— Rrlevawcy.— Objection to the relevancy of an in- 
dictment for wilful fire-raising, or attempt to commit wilful fire- 
raising, in so far as it charged the burning of certain moveables— 
repelled, on the ground that the burning of these was merely set 
forth as part of the narrative. 

Patoick Anderson teas indicted and accused : — No . 17# 

Patrick 
Anderson. 



rag. 



That albeit, by the laws of this and of every other well-governed 
realm, Wilful Fire-raising ; as also, Attempt to Commit Wilful Fire- Oct?i7" 
raising, are crimes of an heinous nature, and severely punishable : 1861. 
Yet true it is ato of verity, that you the said Patrick Anderson Wilful 
are guilty of the said crime of wilful fire-raising, or of the said crime F ^ rais " 
of attempt to commit wilful fire-raising, actor, Or art and part: In 
so far as, on the 19th day of May 1861, or on one or other of 
the days of that month, or of April immediately preceding, or of 
June immediately following, in or near the house or premises called 
or known as the House of Refuge or Reformatory Institution, situ- 
ated in or near Duke Street of Glasgow, In the Barony pariah <tf 
Glasgow, and shire of Lanark, in which you were then detained,, you 
the said Patrick Anderson did, wilfully, wickedly,4Uid feloniously, set 
fire to the said house or premises, by applying a lighted match or 
matches, or piece or pieces of burning paper, or some other lighted or 
ignited substance' or substances to the prosecutor unknown, to two or 
otte or more mattresses in each of the two separate wards or apart- 
i of the said house or premises called Ward No. 15 and Ward 



ing. 



96 CASES BEFORE THE HIGH COURT 

No. 17. No. 11 respectively, by which the said mattresses, or one or more of 
Patrick them, were set on fire, and did throw or place the said mattresses, or 

~ one or more of them, while burning, against or in contact with the 

Oct. l. ' wooden lining of the walls and the flooring in said respective wards 
1861 « or apartments, and the fire thus, or otherwise to the prosecutor un- 
Wiful known, wilfully, wickedly, and feloniously set or applied did take 
* re " ra,B " effect, and did burn or destroy [five or thereby beds or mattresses, a 
blanket, sheet, and bed-mat, and also] part of the said wooden lining 
of the said walls and part of the flooring of the said respective wards 
or apartments, [as also a wooden seat or form affixed to the wall in 
the said ward or apartment called Ward No. 15], or part thereof all 
the property, or in the lawful possession, of the Commissioners ap- 
pointed by the Magistrates and Council of Glasgow, under the Act 
17th and 18th Vict. chap. 86, for repressing juvenile delinquency in 
that city ; and the said fire was thereafter discovered, and by the exer- 
tions of well-disposed persons subdued and extinguished : Or other- 
wise, time and place above libelled, you the said Patrick Anderson 
did, wilfully, wickedly and feloniously, attempt to set fire to said house 
or premises, by applying a lighted match or matches, or piece or pieces 
of burning paper, or some other lighted or ignited substance or sub- 
stances to the prosecutor unknown, to two or one or more mattresses 
in each of the two separate wards or apartments of said house or pre- 
mises above libelled, by which the said mattresses, or one or more of 
them, were set on fire, and did throw or place the said mattresses, or 
one or more of them, while burning, against or in contact with the 
wooden lining of the walls and the flooring of said respective wards 
or apartments, and you did thus, or in some other manner to the pro- 
secutor unknown, wilfully, wickedly, and feloniously attempt to set 
fire to said house or premises. 

Hamilton, for the panel, objected to the relevancy of 
the indictment, in so far as it charged the panel with 
fire-raising, in burning and setting fire to moveables, 
the indictment specifying ' five or thereby beds or mat- 
' tresses, a blanket, sheet, and bed-mat ;' as also, ' a 
' wooden seat or form, &c., affixed to the wall in said 
' ward or apartment called Ward No. 15/ He referred 
to Hume, vol. i. p. 131. 

The Lord Justice-Clerk did not call on the counsel for 
the prosecution to reply. He held that these were merely 
parts of the description of the modus. The important 
part of the libel charges the panel with setting fire to the 
premises, and all that is said about bedding and mat- 



AND CIRCUIT COURTS OP JUSTICIARY. Q7 

tresses, and other things, is merely intended to show the *J°- 17 - 
way in which the fire-raising was committed. Andenon. 

The objection was repelled, and the panel pleaded Giaagow. 
Guilty of the attempt to commit wilful fire-raising as i86i.' 
libelled. wafui 



Sentence. — Eighteen months' imprisonment. 



Fire-raia 
ing. 



Judges — Lords Justice-Clerk and Ivory. 
Her Majesty's Advocate — AfoncrieffA.D. 

AGAINST 

James M'Kay and John Broadly — J. C. Smith. 

Process — Diet — Indictment. — Two panels were indicted for a 
Circuit Court to be holden at Glasgow * in the month of Septera- 
* ber.' They were cited for the 27 th of that month, and the diets 
were afterwards continued from day to day till the 2d of October, 
when they were tried and found guilty. Objection to sentence 
passing, that the prescribed time for holding the Court had expired, 
repelled. 

The panels, who were accused of theft, or otherwise No. is. 
of reset, at first pleaded not guilty, but, after the trial M'Kayand 
had proceeded some time, they withdrew their plea, and b^X- 
pleaded guilty of reset. The Advocate-depute accepted Glasgow, 
the plea, whereupon the jury returned a verdict of guilty ^^ 
of reset as libelled. The Advocate-depute, who had Theft or 
withdrawn the charge of theft, then moved for sen- Raiet ' 
tence. 

The panels' counsel objected to any sentence follow- 
ing. The indictment provided for punishment follow- 
ing only in the event of the offences ' being found proven 
1 by the verdict of an assize, or admitted by the judi- 
' cial confession of the panels before the Lord Justice- 
' General, Lord Justice-Clerk, and Lords Commissioners 

VOL. nr. G 



98 CASES BEFORE THE HIGH COURT 

j«n« ' °^ J U8 ti c * ar y> *& a Circuit Court of Justiciary to be 
M 'K*y «nd ' holden by them, or by any one or more of their num- 
Broadty. ' ber, within the burgh of Glasgow, in the month of 
Glasgow. « September, in this present year 1861.* Now this was 
i86il the 2d of October, and the time for awarding punish- 
Theft or ment under the indictment was therefore past. 

Reset. 

The Advocate-Depute replied, that the panels had 
been cited to a Court to be held on the 27th of Sep- 
tember, and that the diets against them had been ad- 
journed from day to day in the usual manner. 

The Lord Justice-Clerk. — I was anxious to hear 
the argument, more from the important consequences 
which it involved, than because I had any doubt on 
the point. The question is in the construction of 
words. What does the Circuit to be holden in Sep- 
tember mean ? To explain this we must go to the Act 
of Adjournal, which appointed this Court to be held 
on Tuesday 24 th September. This was the Court at 
which the prisoner was indicted. There is an inherent 
power of adjournment in this as in every Court. The 
Court was duly constituted on 24th September, and it 
has since been adjourned from day to day. On 30th Sep- 
tember, Lord Ivory, adjourned the Court to 1st October. 
He adjourned in this way the Circuit Court of 24th 
September, and whole remaining diets — that is to say, 
all appointed to be tried at the Circuit. The effect 
of that was to continue everything from September into 
October. It is not the practice to insert € continuation 
€ of days' in the citation or execution of indictments. 
The panel was duly cited before the Court, and the Court 
continued the diet against him. 

Lord Ivory. — I concur in what has fallen from the 
Lord Justice-Clerk. I think the mistake of the panels' 
counsel arises from the reading of the word Court. The 
Court is a Court to be holden on a particular day, and 
on that day to follow the usual course of adjournment 
from day to day. The Court means the whole Circuit- 
ayre. The prisoner would not, however, have derived 



AND CIRCUIT COURTS OP JUSTICIARY. 



99 



any benefit from this objection being sustained, as the No. is. 
effect would have been to render the whole proceedings m'Kbtumi 
in the trial null from the beginning. Broadly. 

The Court repelled the objection. Glasgow. 

The panels' were then sentenced to two years' impri- ^j 3 ; 
sonment each, the first six months with hard labour. 1 Theft or 

Reset. 



Judge*— Lord Justice-Clerk and Lord Ivory, 
Her Majesty's Advocate— Shand AJD.—*Cowan. 



AGAINST 



Daniel Fhaseb — Maclean-^Bannatyne, 

Murder — Indictment — Relevancy — Locus. — Objection to the lati- 
tude taken in specification of locus in a charge of murder — sustained. 

Dawiel Fraser was indicted and accused, — 

That albeit, by the laws of this and of every other well-governed 
realm, murder is a crime of an heinous nature, and severely pnuifb* 
ble : Yet true it is and of verity, that you the said Daniel Fra- 
ser are guilty of the said crime, actor, or art and part : In so far as, 
on the 14th day of April 1861, or on one or other of the days of that 
month, or of March immediately preceding, or of May immediately 
following, in or near Ike Meuee Lane or kfuae Lane leading from West 
Milton Street to Stewart Street of Glasgow, or in or near Stirling 
Street of Glasgow, or in or near a close or court situated in or near 
said Mease Lane or Muse Lane, and leading therefrom to Stirling 
Street aforesaid, the particular place being to the prosecutor unknown, 
[or elsewhere in or near Glasgow to the prosecutor unknown,] you the 
said Daniel Fraser did, wickedly and feloniously, attack and assault 
the now deceased Patrick M*Kenney t iron-moulder, then or lately be- 
fore residing with James Connoway, quarryman, in or near Maitland 
Street of Cowcaddens, in or near Glasgow, and did with a knife, or 
with some other sharp and cutting instrument to the prosecutor un- 



No. 19. 
Daniel 
Fraser. 

Glasgow. 

Sept. 26. 

1861. 

Murder. 



1 See the case of Mary M { Far lane or Taylor ', Glasgow, May 1. 
1858, Broun, vol. i. p. 550. 



100 CASES BEFORE THE HIGH COURT 

No. 19. known, stab or cat the said Patrick M'Kenney one or more times on 

Frager. or near ^ e bre* 8 * or "de, whereby be was mortally wounded, and 

Glasgow * mme <tt ate ly or B00n thereafter died, and was thus murdered by you 

Sept 26. the said Daniel Fraser. 
1861. 

Murder. Bannatyne, for the panel, objected to the relevancy 
of the indictment, in respect too great latitude was taken 
in libelling the locus delicti, by the introduction of the 
alternative, ' or elsewhere, in or near Glasgow, to the 
' prosecutor unknown.' In support of the objection, it 
was urged that, had this been a case in which a defence 
of alibi was to have been set up, it might have been 
found impossible to frame such to meet the indictment. 
' In Glasgow' was too general a description of locus in 
a criminal libel, — € near Glasgow 1 was no definition at 
all. The words objected to ought, therefore, to be struck 
out. 

Shakd, for the prosecution, replied, that such a gene- 
ral alternative as was here objected to, superadded to a 
more particular statement of locus, was sanctioned by 
practice, and referred to the case of Margaret Hannah, 
High Court, Dec. 17, 1860, Irvine, vol iii. p. 635, and 
authorities there cited. 

Maclean, in reply, distinguished a case of homicide 
from one of child-murder, under which latter class all 
the cases referred to fell. The discovery of the body of 
a murdered child in a particular place did not necessarily 
point to that as the locus of the murder. The body 
might have been transported thither after death. Be- 
sides, in the present case, the deceased was said to have 
died immediately, or soon after the infliction of the 
wound. 

The Court sustained the objection, and the words 
were deleted from the indictment. 



AND CIRCUIT COURTS OF JUSTICIARY. 10 1 



HIGH COURT. Nov . 18 . 

1861. 

Present, 
The Lord Justice-Clerk, 

Lords Ardmjllan and Neayes. 
Archibald Douoall, Suspender — Q. Young — J. C. Smith. 

AGAINST 

Thomas Dykes and James Alston Dykes, Respondent — W. Ivory. 

Suspension — Breach of the Peace — Church — Process — Libel — 
Relevancy. — A libel sustained as relevant which charged a breach 
of the peace, especially when committed wilfully and maliciously, on 
the Sabbath-day, in a church, in presence of the minister and con- 
gregation, during divine worship ; as also the wickedly, wilfully, and 
maliciously disturbing and annoying a minister and congregation 
assembled in church during divine worship, on the Sabbath-day. 

Conviction sustained, which followed on a verdict of the Jury finding 
the panel guilty of breach of the peace as libelled, but malice not 
proven. 

The complainer was charged at the instance of the No. 20. 
respondents, procurators-fiscals at Hamilton, in a crik I p , J£lL*" 
minal libel, which set forth : — High Court. 

Nor. 18. 
1861. 

That albeit, by the laws of this and of every other well-governed Suspen»ion« 

realm, Breach of the Peace, especially when committed wilfully and 

maliciously on the Sabbath-day in a church, in presence of the minis; 

ter and congregation, and during divine worship, and more especially 

▼hen committed by a person who has been previously convicted of 

that crime ; as also, the wickedly, wilfully, and maliciously disturbing 

and annoying a minister and congregation, assembled in church during 

divine worship, on the Sabbath-day, are crimes of an heinous nature 

ud severely punishable : Yet true it is and of verity, that the 

said Archibald Dougall has been guilty of the said crimes, aggravated 

*» aforesaid, or of one or other of them, actor, or art and part : In bo 

par as, the Reverend William Carrick, now or lately residing at the 

manse of East Kilbride, in the parish of East Kilbride aforesaid, hav- 



102 CASES BEFORE THE HIGH COURT 

No. 20. ing at the times after libelled, and previously, been the parish minister 
^^j^*' of East Kilbride aforesaid, and in the practice of officiating as such in 
Hh Court *° e Established Church of that parish ; and the said Archibald Dougall 
Nor. 18. having been, at the said dates, in the habit of going to or attending 
1861 - the said church on the Sabbath-days; and he, the said Archibald 
Suspension. Dougall, having conceived groundless malice and ill-will towards the 
said Rev. William Carrick, and having formed the design of disturb- 
ing and annoying the said William Carrick, when engaged in church 
in performance of his sacred duties, and of disturbing the congregation 
assembled to join in the worship, or some of them, he, the said 
Archibald Dougall, did wickedly, wilfully, and maliciously, on various 
Sabbath-days in the months of August, September, October, Novem- 
ber, and December 1860, and in the months of January, February, 
and March 1861, go to the parish church of East Kilbride afore- 
said, and did seat himself in or near the seat or pew therein usually 
occupied by him, in whole or in part, for the apparent or pretended 
purpose of being present at, and joining in, the sacred service ; and 
the congregation of the said church being assembled, and the said 
Rev. William Garrick having ascended the pulpit and commenced the 
service, the said Archibald Dougall, in pursuance of *his said wicked 
and malicious design, did rise from his said seat during the worship or 
service, and while the same was proceeding, and walk through the 
church to a door thereof distant from his seat, and thereby leave the 
church, all in a noisy and irreverent manner; and continued to do so 
systematically Sunday after Sunday when the said Reverend William 
Carrick officiated, and his malicious motives and predetermined eon- 
duct being well known and expected, the attention of the congregation 
was fixed upon him immediately on the said Rev. William Carrick 
entering the pulpit, until he had accomplished his said habitual outrage ; 
and by all which, the mindB of the said minister and congregation 
were discomposed, their devotions interrupted, and they were otherwise 
disturbed and annoyed, all in breach of the peace. 

The libel then stated several dates, being Sundays on 
which the suspender acted in the manner above de- 
scribed, * by which the said Archibald Dougall, on each 
' and all of the said dates above libelled, committed a 
1 breach of the peace.' 

The suspender was brought before the Sheriff-substi- 
tute, an objection to the relevancy of the libel having 
been repelled, he was tried before a jury, who found the 
panel guilty of breach of the peace as libelled, but found 
malice not proven. 



AND CIRCUIT COURT OP JUBTIC1ARY. 103 

The Sheriff-substitute, in respect of the verdict, fined ^^{ 9 
the panel £10,— d?W 

High Court. 
And in default of payment thereof, decerns and adjudges the said ^^ ' 

Archibald Dongall, panel, to be imprisoned within the prison of Ha- « : — 

milton for the period of two calendar months from this date : Further, 
ordains the said panel to find caution to keep the peace for the period 
of twelve months under the penalty of £50 ; and in default of finding 
such caution, decerns and adjudges the said panel to be further impri- 
soned within the said prison for the period of two calendar months. 
But on payment of such fine, and finding such caution within six days, 
or on the expiration of said periods respectively, ordains him to he set 
at liberty, and decerns. 

The suspender paid the fine and found caution. He 
brought the present suspension, and stated that his 
reasons for not attending the ministrations of the Rev. 
Mr Carrick were conscientious ; that he was accustomed 
to attend the parish church, that he did not do so when 
he knew that Mr Carrick was to preach ; that Mr Car- 
rick was often absent ; that if he happened to go when 
Mr Carrick officiated, he left the church, but he averred 
that he did not do so in such a manner as to disturb the 
congregation, or with any desire to do so. 

He maintained — 

1. That the libel did not relevantly charge a breach 
of the peace. It was averred that he left the church in 
a noisy and irreverent manner ; these terms were too 
vague and indefinite. It was matter of opinion whether 
conduct was or was not irreverent. A charge of having 
behaved in the way libelled would certainly not have 
been a relevant charge of breach of the peace, had it 
occurred in a theatre, or any where but in a church ; 
but, (1.) The place where a certain course of conduct 
had been pursued, could not affect the question of 
breach of the peace. (2.) The circumstance, that the 
acts with which the complainer was charged were done 
in a church, was in the libel set forth as an aggravation 
merely, and did not form part of the same main charge. 
It was of the essence of breach of the peace that the 



104 CASES BEFORE THE HIGH COURT 

iwn • con ^ uct ch^ged caused alarm to the public, and tended 

PyS». * to destroy the sense of public security — Hume, Criminal 

H^court, Law, p. 439 ; Williams v. Glenister, May 8, 1824, 2 

186 1. * Barnwell and Cresswell, p. 699. 
Suspension. 2. Even if the charge were relevant, the verdict of 
the jury finding malice not proved amounted to an ac- 
quittal. Leaving church without any wrong motive 
was not a breach of the peace. 

3. The conviction should be quashed, because it did 
not provide for the complainers liberation on payment 
or finding caution, unless he paid and found caution 
within six days. 

4. The proceedings had been irregular, in respect, 
(1.) The complainers declaration, which was used in 
evidence, had been dictated by the fiscal. (2.) The pre- 
vious conviction had been proved only by the evidence 
of the Rev. Mr. Carrick, which was insufficient and in- 
competent proof of a previous conviction. 

The Court did not call for a reply. 

Lord Ardmillan. — This is a clear case ; we cannot 
give effect to this suspension. I should be sorry could 
it be doubted that a person who does what this person 
is said to have done- could not be reached by the law. 
The libel is perhaps somewhat long, but it contains a 
distinct statement of conduct which it is impossible to 
view as other than a breach of the peace ; and I cannot 
concur in the view that conduct which may not be a 
breach of the peace in one place, must therefore be per- 
mitted in every other place. We do not indeed attach 
any sanctity to the building in which public worship is 
carried on ; but we do hold that decency of conduct in 
a church is most important ; and I cannot hold conduct 
destructive of such decency and order as other than a 
breach of the peace. Malice, or a deliberate intention 
of wounding the feelings of the minister has indeed been 
negatived by the jury. But there remains, without 
malice, enough set forth in this libel to support the 
charge of a breach of the peace, namely, the charge of 



AND CIRCUIT COURTS OF JUSTICIARY. 105 

disturbing that order which should prevail in a place of d^'^V 
worship, and which the congregation are entitled to ex- p y ke> - 
pect the law to maintain. ^^g*" 

If any officer of the church should remove a man who 1861 - 
was disturbing the order necessary in a place of worship, ^pe 08 "* 1 - 
there can be no doubt that he would be supported by 
the law ; and if a man's conduct be such as would war- 
rant his removal on account of it, that conduct is clearly 
a breach of the peace. We are not here reviewing the 
evidence ; there is enough here averred and found proved, 
to support the charge of commission of a breach of the 
peace ; I therefore see no reason for disturbing the con* 
viction. 

Lord Neaves. — I am clearly of the same opinion. I 
throw out of view the element of malice ; and only in- 
quire whether, without malice, this is a good charge of 
a breach of the peace. The libel might have been 
framed otherwise ; but it sets forth a series of acts by 
which, by a systematic course of conduct from time to 
time, the accused is said to have produced this effect, 
that the minds of the minister and congregation were 
discomposed, their devotions interrupted, and they were 
otherwise disturbed and annoyed, all in breach of the 
peace. Now, the jury have affirmed the proposition 
that the conduct has been in breach of the peace, and I 
find nothing in the libel to contradict that conclusion. 

However conscientious the views of this gentleman 
may have been, however free from malice, the acts set 
forth are such as might very naturally admit of the con- 
struction, that they were intended as an insult to the 
minister ; and I cannot doubt that a series of such in- 
sults, repeated Sunday after Sunday, or time after time, 
may amount to a breach of the peace. The conduct 
described was not only an insult to the minister, but 
also to the congregation, and was calculated to give rise 
to great irritation, and to a determination to repress it. 
It could not have been allowed to go on day after day, 
and the result would have been that some member of 



106 OASES BEFORE THE HIGH COURT 

No. 20. the congregation would have interfered to put a stop to 

DykU*' it by force, and scenes of the most unseemly and violent 

High Court nature might have been the consequence. On the whole, 

1861. ' I cannot see that the charge in the libel is improperly 

Suspension. ]aid, or not quite sufficient to support the verdict. 

The Lord Justice-Clerk. — I am of the same opinion. 
The conduct charged against the suspender in the minor 
proposition, amounts to a gross insult to the minister 
while performing his duty in the church, and being so, 
to a gross insult to every individual member of the 
* congregation who was attending on his ministry. I 
think that such conduct was directly calculated to pro- 
duce a breach of the peace, and I would only add, if we 
were to hold that such conduct could not be repressed 
by the criminal law of the country, that would only 
tend the more to make such conduct lead to breaches 
of the peace. 

The suspension was refused, with expenses. 

Alexander Wtub, W.S.— Andrew Murray Jun. W.S.— Agents. 



Thomas Law and Mary Turner, Suspender* — F. W. Clark. 

against 

Thomas Linton, Respondent — G. Young — Millar. 

Suspension — Statute 11th and 12th Vict. c. cxiii. (Edinburgh 
Police Act) — Breach of the Peace. — Certain persons were charged, 
in the Police Court of Edinburgh, under the Edinburgh Police Act 
of 1S48, with breach of the peace by disorderly conduct, and two of 
them with suffering disorderly conduct at the same time and place. 
The charge of breach of the peace having been found not proved, 
and the persons charged with suffering disorderly conduct having 
been convicted, a suspension, at their instance, on the ground that 
the riot not having been proved, they could not be legally con- 
victed of suffering it, refused. 

Refusal to separate the trials of several panels is not a relevant ground 
of suspension, unless it amounts to oppression. 



AND OIBCUXT COUBTS OP JUSTICIARY. 107 

Tbx complainers, and certain other parties, were ^^ 
charged with the commission of a breach of the peace, V T J^JL 
and the complainers with a contravention of sect. 159 Hi . CourC 
of the Edinburgh Police Act (1848), in so far as, on ™£**- 
29th October 1861, the complainers, and the other par- - 
ties, did all, or each, or one or more of them, in the 
house in South Bridge Street occupied by the com- 
plainers, behave in a disorderly manner ; and in so far 
as, same date and place, the complainers did, in contra- 
vention of section 159 of the Edinburgh Polioe Act 
(1848), ' suffer riotous and disorderly conduct' within 
the premises occupied by them. 

The Judge of the Police Court found the complainers 
guilty of suffering the riot, and the complaint not proved 
against the other parties. The complainers being im- 
prisoned, prayed for suspension and liberation, because, 
(L) The charge of disorderly conduct not being proved, 
the charge of suffering it should have been held not 
proved also ; (2.) Because the compkiners moved for a 
separation of the trials of themselves and of the other 
parties charged with disorderly conduct, that they might 
adduce them as witnesses in reference to the charge of 
contravention of the Police Act, by suffering disorderly 
conduct. 

Lord Ardmillax. — It was within the discretion of the 
magistrate to separate the trials, or to refuse to do so, and 
this Court has nothing to do with his exercise of that 
discretion. As to the other ground of suspension, 
though the charge of riot might not be proved against 
any one of the parties accused of it, there may still have 
been a riot in which some of the parties were engaged, 
and which the complainers may have permitted. If 
the Judge had sufficient evidence of that, and we are 
not here to judge of the sufficiency of the evidence, he 
was warranted in convicting the complainers. 

Lord Neaves. — I am of the same opinion. But while 
I hold that it is entirely within the discretion of a judge 
to separate trials, or to refuse to do so, yet I do not say 



108 CASES BEFORE THE HIGH COURT 

No. 2). ^at there may not be cases where the interests of jus- 
Turner tice so plainly require a separation of the trials of two 
* ° 1 or more panels that a refusal to separate the trials might 
Nor. is. be a good ground of suspension. No such case, however, 

1861. • ii 

is made here. 



"pennon. The Lord Justice-Clerk. — It is quite possible that 
the riot which the complainers permitted in their house 
was the same riot as that with which the other parties 
were charged, and yet it might have been impossible for 
the Judge, on the evidence before him, to find that any 
one of the parties charged with it took part in it. Tet 
it may have been perfectly clear that there was such 
a riot, and that the complainers permitted it. On the 
other hand, it is quite possible that the riot mentioned 
in the second charge was not the same riot as in the 
first charge. No doubt it is said to have taken place 
on the same day, and in the same house, but, unfor- 
tunately, it is by no means impossible that there should 
be two or more riots in the same house, and on the 
same day. Then, as to the other point, I think the 
allegation that the Judge refused to separate the trials 
is not a relevant ground of suspension at all, unless the 
refusal comes up to a case of oppression. Anything 
short of that will not do, because there is nothing more 
within the discretion of a Judge than to say whether 
two or more panels should or should not be tried to- 
gether. 

The Court refused the bill, with expenses. 

Jambb Bell, S.S.C.— John Richabdook, WJ&— Agents. 



AND CIRCUIT COURTS OP JUSTICIARY. 109 

Annis Donaldson, Suspender — Paterson. 

AGAINST 

Hinrt Buchan, Respondent — A. R. Clark. 

Libel — Rblevancy — Process — Reset op Theft — Suspension. — A 
complaint in a Police Court, libelling that an accused had received 
goods knowing them to have been stolen, held (in a suspension) ir- 
relevant, because it contained no substantive averment that the goods 
had been stolen. 

The suspender having been convicted of reset of theft No. 22. 
by the Judge of the Police Court at Stirling, presented 



this note of suspension ; the grounds of which were, that 
she (a servant girl, seventeen years of age,) had been Nov. is. 
apprehended on 15th July last, conveyed to Stirling, . 186L 
and detained in the police cells all night, without com- ' 
plaint or warrant, and next morning that she had been 
charged on a complaint at the bar of the Police Court 
with reset, without having had any opportunity of tak- 
ing advice, and of communicating with her friends. 
Besides, the complaint contained no relevant charge of 
reset, in respect that it did not state that the property 
alleged to have been resetted had been actually stolen, 
nor from whom nor by whom it had been stolen, nor 
the time, place, or mode at or in which the theft had 
been committed. 1 



1 The objections pleaded were, 1. That the apprehension of the 
suspender on the 15th July was without warrant. 

2. That undue means were used to induce her to plead guilty. 

3. That the charge was irrelevant, in respect that the goods are not 
substantially alleged to have been stolen. 

4. That the warrant for apprehension was not written out or signed 
until after conviction. 

5. That the sentence was written out and signed after the suspender 
was removed from Court. 

In support of the 1st and 4th of these objections, the suspender 
referred to the cases of Crawford v. Wilson and Jamesons, High 



110 CASE* BEFORE THE HIOH OOVRT 

dSSSLi The complaint, which was dated 16th July 1861, was 
BJh^. M follows:— 

Nov. 18. Annie Donaldson, lately residing in Alva, and county of Stirling, 
1861 • has been guilty of the crime of reset of theft, actor or art and part, in 
Suspension, so far as, upon the 21st day of June 1861, or upon one or other of the 
days of that month, within the dwelling-house or premises possessed by 
John Stupart, maltster, situated in King Street of Stirling, she did wil- 
fully and feloniously reset and receive certain articles enumerated in 
the libel, ' the property of or in the lawful possession of the said John 
Stupart, residing in King Street aforesaid, she, the said Annie Donald- 
son, did reset and receive the said articles, well knowing the same to 
have been stolen, and the value of said articles is less than £10 sterling/ 

The respondent contended that, while the objection 
to the relevancy would have been good, if taken to an 
indictment before the Justiciary Court, it was not good 
when taken to a complaint to the Police Court. The 
minute criticism applied to indictments was not appli- 
cable to such complaints ; all that was essential in such 
complaints was, that they should duly inform the panel 
of the offence charged, and the facts on which the charge 
was based. 

The Lord Justice-Clerk. — That is true when the of- 
fence charged is properly a police offence, but not when 
it is a crime cognisable by other courts, but to which 
Police Courts are made competent. 

Clark, for the respondent — By the General Police 
Act, 13 th and 14th Vict. c. S3, under which the convic- 
tion was pronounced, convictions under the Act could be 
reviewed only on the grounds of corruption, malice, and 

Court, Nor. 19, 1638, Swinton, vol ii. p. 200; Law v. Steel, 
High Court, July 21, 1846, Arkley, p. 109 ; Robertson v. Machay, 
High Court, July 21, 1846, Arkley, p. 114; Ritchie v. PUmer, High 
Court, Deo. 20, 1848, J. Shaw, p. 142 ; Bfytha v. M'Bain, High Court, 
Feb. 20, 1852, J. Shaw, p. 554. 

As regarded the alleged oppressive nature of the whole proceeding, 
reference was made to Crawford v. Blair, High Court, Nov. 17, 1856, 
Irvine, vol. ii. p* 511 ; Qrakam v. Linton, High Court, Nov. 24, 1856, 
Irvine, vol ii. p. 598. 



AND CIBCU1T COURTS OP JUSTICIARY. HI 

oppression of the Judge, wilful deviations from the eta- dS^Sh 
tutory form, and want of power, including want of ju- ^J^ma. 
risdiction. Here the objection was only to form ; it HlghCcmrt . 
could not be said that the crime of reset of theft was N °*- J 8 - 
not charged, but only that there was a want of sufficient 
specification. 

Loan Ardjollan. — I think this objection, which 
amounts to a plea of defect of jurisdiction, should be 
sustained, because, if the complaint does not contain a 
clear and full statement of the crime meant to be charged, 
there ia no jurisdiction to try the case. We do not deal 
with complaints in Police Courts with the same strict* 
ness as with indictments, but in no Court could the pro- 
secutor charge that as a crime, the description of which 
does not contain the crime. In a charge of reset, three 
facts must be fairly and clearly stated — 1. That the 
goods were stolen. 2. That the accused party received 
them. 3. That she received them knowing them to be 
stolen. These three facts must be all averred in the 
charge. Here there was no statement of the time or 
place of the theft, or of the name of the thief, or that 
these things were unknown to the prosecutor ; there 
was not even a substantive statement that the articles 
were stolen. That is left to be inferred from the state- 
ment that the accused knew they were stolen, but I do 
not think it is sufficient that this material and essential 
element of the crime may be arrived at by inference ; 
the prosecutor was bound to state that there had been 
a theft of the articles. I am disposed to think that this 
objection acquires additional force from the circumstan- 
ces of a case, in which the procedure, as appears on the 
face of the proceedings, should have been so summary. 

Lord Neaves. — I am of the same opinion. I think 
that it would be a serious matter if this were held a 
good charge of reset. It is at the foundation of that 
charge that a theft was committed, and it is essential to 
justice that substantive notice of that fact should be 
given to the party accused. This complaint is not 



112 CASES BFORB THE HIGH COURT 

Donaidwn founded on an averment of theft, and it would be very 
BuJhan. unsafe to leave that to the kind of inference arising from 

High Court. *be use in the complaint of the words € knowing the 
iJei?" ' same to have been stolen.' That is said to imply not 

^^^ merely that the party believed that the articles were 
stolen, but also that they were stolen as matter of fact. 
The tendency of such a mode of libelling, if recognised, 
would be to leave the accused party unprepared for the 
substantive part of the charge, and to mislead the ma- 
gistrate as to the matter of fact necessary to be proved. 
A party may have all the moral guilt of reset without 
having committed the crime. He may think that the 
goods were stolen ; but unless they were actually so, he 
has not committed the crime. The crime of reset of 
theft consists not only in the conduct of the accused, 
nor in the state of his mind, which is all that is here 
stated, but also in the circumstance that a previous 
crime has been committed by another person, and that 
should have been set forth. 

When the thing charged does not come up to a crime, 
there is no jurisdiction in the Judge, and his sentence is 
as void as if it had been for any innocent act. 

The Lord Justice-Clerk. — I am of the same opinion; 
and I think if we were to disregard this objection, and 
sustain this conviction in the face of it, our judgment 
. would be fraught with the most dangerous consequences. 
This is a conviction of the crime of reset of theft, or it is 
nothing at all. There can be no conviction good in law 
of any crime which does not proceed on a libel or com- 
plaint which relevantly sets forth species facti amounting 
to that crime ; and a conviction proceeding on a libel or 
complaint not setting forth species facti amounting to 
that crime, is a conviction in excess of the jurisdiction 
of the judge, for no judge has jurisdiction to convict of 
a crime which is not charged. To reset of theft three 
things are indispensable. In the first place, that the 
property resetted shall have been stolen ; secondly, that 
it shall have been received by the accused ; and, thirdly, 



AND CIR0U1T COURTS OF JUSTICIARY. 113 

that the accused when receiving it shall be in the guilty j^^n 
knowledge that the property has been stolen ; and the B Jj^ 
want of any one of these is fatal to the relevancy of a HighCoupt- 
charge of reset of theft. In dealing with the statement N ^ 6 Jf- 
in a complaint of this kind of the facts necessary for a SnB ^ Mioiu 
relevant charge of the offence, I cannot leave out of 
view any one of these elements. It is said that we 
should apply our minds to the consideration of such a 
complaint in a more indulgent spirit than if we were criti- 
cising an indictment, and that an objection which the 
Court might sustain, if made against an indictment, 
ought not to be fatal to a complaint in the Police Court, 
and to the proceedings following on it. I think that 
doctrine, as stated, is in the highest degree dangerous. 
In the trial of proper police cases, as when a party is 
brought up as drunk and disorderly, even if a written 
complaint is necessary, it may not be necessary that that 
complaint should assume the form of a regular indict- 
ment, or should contain a major and minor proposi- 
tion. In such a case, it is quite sufficient, if there be a 
proper allegation, that at a certain time, and in a certain 
place, the party committed a contravention of the Act 
of Parliament, or if facts are set forth involving such a 
contravention. We have had examples of such cases in 
Jackson v. Linton, High Court, February 27, 1860, 
Irvine, vol. iii. p. 563, in which the panel was charged 
with an attempt to pick pockets, and Parrot v. Lang, 
High Court, March 5, 1860, Irvine, vol. iii. p. 572, 
where the charge was of suffering disorderly conduct, 
which are proper statutory police offences. But where 
the Defender is accused of a crime, as reset of theft, 
I think it makes very little difference to what tribunal 
the prosecutor resorts, as regards his obligation to state 
the offence relevantly; it is just as incumbent on the 
prosecutor in a Police Court to state a charge of reset of 
theft, or the like, in a complaint relevantly, as it is for 
the Lord Advocate, in this Court, to state such a 
charge relevantly in an indictment ; and any defect 

VOL. IV. H 



] 14 OABJJ* BWOKE TBft HHW COURT 

jj^JjS^ that goes to absolute irrelevancy is just aa fatal to a 
charge in a Police Court, as to the relevancy of an in- 



Hi .j^^^dictment in the High Court of Justiciary, Now, 
nSt. j*. w jiat is the case here ? We are here presented with 
a statement of facts, in which it is said that the 
accused did reset and receive certain articles, 'the 
' property of or in the lawful possession of the said 
' John Stupart ;' and then these words are added, ' she, 
' the said Annie Donaldson, did reset and receive the 
' said articles, well knowing the same to have been 
'stolen/ That is the whole statement It is not alleged 
that the articles were stolen, by whom the theft was 
committed, nor when nor where the theft was committed, 
nor from whom the articles in question were stolen. 
Some of these matters are left to inference, and some of 
them cannot be inferred at all from this complaint. It 
cannot be known from this complaint who stole the 
articles, or when or where they were stolen. Yet 
the accused, under such a libel, is entitled to know 
what these facts are, or that the prosecutor, for some 
sufficient reason, was unable to ascertain them, but 
is prepared to prove that theft was undoubtedly 
committed of the goods said to have been resetted. I 
think, that the circumstance that this was a case to 
be tried before a Folioe Magistrate, makes it all the 
more necessary to the due administration of justice, that 
the facts constituting the offence charged should be dis- 
tinctly stated ; because the magistrate, not being an 
educated professional lawyer, may more readily fall into 
the error of thinking, that it is sufficient for conviction, 
if it be proved, in the first place, that the accused per- 
son received the goods ; and, in the second place, that he 
betrayed such symptoms of guilty knowledge as led with 
moral certainty to the conviction that he knew that 
the things had been stolen. But if he convicted the 
accused on such evidence, there certainly could be no 
greater error,— and yet there could be no redress, because 



AND CIBOUIT COUBT8 OF JUSTICIARY. 1 ] 5 

the objection would arise on the evidence, which we D^i^n 
cannot review. The circumstance that we cannot review B J^ M1 
the merits of a judgment on the evidence, makes it all Hi faC<wirt 
the more necessary, that all the procedure, preceding N ^' 6 } 8 - 
the taking of the evidence by the Judge of the Inferior ^ '^ 
Court, should be perfectly regular. I am quite satisfied 
that this is not a charge of reset of theft, because it is 
defective in the statement of that which is essential to 
the offence, and, therefore, that the magistrate, in con* 
victing on this charge, exceeded his jurisdiction. 

The Court sustained the reasons of suspension, and 
found the complainer entitled to expenses. 

J. * A. Psddu, W.S.— Agents. 



Susah Nicolson or Donaldson, Suspender— *F. W. Clark. 

AGAINST 

Thomas Linton, Respondent— ft Young. 

Suspension— Process — Pouce Court — Conviction. — A Police Judge 
convicted person of an offence against the Act for regulation of 
public-houses, on the ground that the offence was proved by A, and 
two other persons, ' credible witnesses/ He also sentenced A to 
imprisonment for prevarication during the triaL Suspension by A, 
on the ground that she could not be guilty of prevarication if she were 
a credible witness— -repelled. 

Question, Whether the Procurator- Fiscal in the Police Court, who 
was also complainer in the trial for contravention of the Public 
Houses Act, was the proper respondent in such a suspension ? or, 
Whether the Judge should have been called as respondent? 

In a trial, in the Police Court of Edinburgh, for con- 
travention of the 15th section of the Regulation of Pub- ^No. 23. 
lie Houses Act, 16th and 17th Vict. c. 67, on a complaint 
at the instance of Mr Linton, the superintendent of 
police, the suspender was called as a witness for the pro- not. 18?" 
secutor, and a conviction was pronounced against the 1861, 
persons charged. The conviction bore that it proceeded Su8 P OMion - 



Nicholson 
Linton. 



No. 28. 
Nicholson 

v. 
Linton. 

High Court, 

Nov.: 

1861 

Suspension. 



116 CASES BEFORE THE HIGH COURT 

on the evidence of the complained and of two other 

persons, ' credible witnesses/ 
l uourt. After the conviction was pronounced, the police judge, 
N i°86i 18 " ™ v ^ r ^ ue °f *h e P ower conferred by the 97th section of 

the Edinburgh Police Act, 11th and 12th Vict. c. 113, 

which provides — 

4 that if any person, when under an examination on oath or solemn 

* affirmation before the judge, shall prevaricate, or wilfully conceal the 
' truth, it shall be lawful to the judge, in open Court, and in a sum- 
4 roary manner, to adjudge the person so offending to imprisonment for 
4 any term not exceeding sixty days ; and the sentence awarding such 
4 imprisonment shall set forth the nature of such offence,' 

pronounced the following sentence against the suspen- 
der :— 

4 Whereas Susan Nicholson or Donaldson, residing at Greenside 
4 Row, Edinburgh, having been this day examined before me, Robert 
4 Johnston-, judge of the Police Court of Edinburgh, as a witness upon 
4 oath, in a complaint at the instance of Thomas Linton, superintendent 
4 of police, Edinburgh, against John Mooney and Mary Ann Hepburn 

* or Greig, both residing at Low Calton, Edinburgh, did, in giving her 
4 evidence, wilfully conceal the truth, in respect that, in the coarse of 
4 said evidence, she, after due warning, repeatedly evaded and refused 
4 to answer the questions put to her ; therefore, in open Court and in a 
4 summary manner, I convict the said Susan Nicholson or Donaldson of 
4 wilful concealment of the truth, and adjudge her to be committed to 
4 the prison of Edinburgh for thirty days from this date, at hard labour ; 
4 and warrant is hereby granted to officers of Court to incarcerate her 
4 in said prison, therein to be detained accordingly/ 

The suspender brought the sentence under review by 
suspension — arguing, that as the conviction in the prin- 
cipal trial was contradictory of the conviction for preva- 
rication, the latter must be held as erroneous. 

For the Respondent. — Under the Act 16th and 17th 
Vict. c. 67, and the Act 9th Geo. IV., c. 58, to which the 
former Act referred, he acted, in prosecuting these com- 
plaints, merely in a private capacity. The sentence was 
an independent act of the judge, with which he had 
nothing to do. He was not the proper respondent. If 
the judge had gone wrong, he should have been the re- 



AND CIRCUIT COURTS OF JUSTICIARY. 117 

spondent himself. If, however, the Court thought he N^Son 
(Mr Linton) might be respondent, he did not desire to Li *^ 

For the Suspender. — If that were so, there was no- N °g 6 J 8# 
thing to hinder the Court proceeding without a respon- SuapeMicm- 
dent. 

The Lord Justice-Clerk. — I am not willing to rest 
my opinion on a solution of the question, whether, in a 
suspension of this kind, Mr Linton, being an officer of 
the Court, may not be made a respondent. That may 
require consideration. 

But it is idle to enter on a consideration of the ques- 
tion, because I believe we are all of opinion, that the 
objection is, on the merits, utterly irrelevant. The Act 
of Parliament authorizes the judge, if he finds that a 
witness ' shall prevaricate or wilfully conceal the truth, 
' in open Court and in a summary manner, to adjudge 
' the person so offending to imprisonment for any term 
' not exceeding sixty days/ — a very useful power in 
trying cases occurring in these Courts. 

The warrant of commitment in this case sets out that 
the suspender, being examined as a witness, ' upon oath, 
' in a complaint at the instance of Thomas Linton, 
' superintendent of police, Edinburgh, against John 
' Mooney and Mary Ann Hepburn or Greig, both re- 
' riding at Low Calton, Edinburgh, did, in giving her 
' evidence, wilfully conceal the truth, in respect that, in 
1 the course of said evidence, she, after due warning, re- 
c peatedly evaded and refused to answer the questions 
' put to her/ and therefore the judge proceeded to sen- 
tence the suspender to a certain number of days' impri- 
sonment, and nothing is said against the regularity of this 
warrant. The sentence is not challenged on any ground 
affecting the warrant of commitment. But it is said 
that a statement has been made by the judge inconsist- 
ent with the fact found by this incidental warrant of 
commitment, that the suspender, as a witness, wilfully 
concealed the truth, and this is founded on a statement 



118 CASES BEFORE THE HIGH COURT 

Nidwtoon ™ *^ e °° nv i c ^ 011 ^ following on the trial in which the 

*• suspender was a witness, namely, that that conviction 

Hi h Court P 1 * 00 ^^ on the testimony of the cortiplainer and other 

Not. is. parties as credible witnesses. That is in accordance with 

1861 

- the form given in the schedule of the Act 9th Geo. IV., 
and no more is meant by it than that the witnesses ex* 
amined in support of the complaint are, in the estima- 
tion of the judge, credible to such an extent, and in such 
a sense, that it justifies him in pronouncing sentence. 
The statement that the conviction proceeded on the 
evidence of credible witnesses, is merely an affirmation 
as matter of fact, that the conviction proceeded on 
credible evidence. Between that affirmation, and the 
assertion that the witness adduced has wilfully concealed 
the truth, there is no inconsistency whatever, because 
the witness may, notwithstanding, have given her evi- 
dence in such a way as to convey to the judge a correct 
impression that, as to the matters of which she did 
speak, she was a credible witness. % 

I prefer, therefore, to put my judgment on the ground 
that the objection is untenable, and to waive considera- 
tion of the other question, whether Mr Linton is the 
proper respondent in this case. 

Lord Abdmillan concurred. 

Lord Neaves concurred, and thought that Mr Linton 
might have opposed the bill as respondent if he thought 
proper, but that he was not bound to do so. 

The Court repelled the reasons of suspension. 

Jakes Bbll,SJS.(X— John Richabmoh, WJ5. — Agents. 



AND CIRCUIT COURTS OF JUSTICIARY. \]Q 

Present, 
Thb Lord Justice-Clerk, 
Lords Ivory and Cowan. 
Her Majesty's Advocate — Lard Advocate MoncreSf—W. Ivory A.D. 

AGAINST 

James Fairwrather— wL EL Clark— Lancaster. 

FotaEKf— Uttering— Bill of Exchange— Lows— > PnoDUoridNs— 
Indictment — Relevancy.— Sentence*— 1. Objection to the state- 
ment of the loot* in a charge of the Uttering of oertain Forged Bill* 
of Exchange, as being at or near the Post-Office at Dundee, * or at 
1 or near some other Post-Office in or near Dundee, or in the shire 
1 of Forfar, or in Scotland, to the prosecntor unknown'-*-r6petfe& 

1 Objection to the admissibility of certain productions in the inven- 
tory, reserved until they were tendered in evidence. 

3. A panel who pleaded guilty of Uttering the Forged Bills of Ex- 
change sentenced to eight years' penal servitude. 



1861. 



James Faibweatheb was charged on Criminal Letters, no.24. 

James 

fturwei 

ther. 



**- £SL 



Whereas it is humbly meant and complained to us by our right Hi {£^ < ? rt * 
trusty James Moncreif^ Esquire, our Advocate for our interest, upon i86l. 
Jamas Fairweather, now or lately prisoner in the prison of Glasgow : Fo 
That albeit, by the laws of this and of every other well governed Ac. 
realm, Forgery ; as also the wickedly and feloniously Using and Ut- 
tering, as genuine, any Forged Bill of Exchange, Promissory-Note, or 
other Writing, having thereon any forged subscription, knowing the 
lame to be forged, are crimes of an heinous nature, and severely pu- 
nishable : Yet true it is and of verity, that the said James Fair- 
weather is guilty of the said crimes, or of one or other of them, actor, 
or art and part : In so far as (1.) on the 27th day of December 1860, 
or on one or other of the days of that month, or of November imme- 
diately preceding, or of January immediately following, in or near the 
office or business premises in or near Meadowside, Dundee, then occu- 
pied by the said James Fairweather, or at some other time or place in 
or near Dundee or in the shire of Forfar or in Scotland to the prose- 
cutor unknown, the said James Fairweather did, wickedly and felo- 



120 GASES BEFORE THE HIGH COURT 

No. 24. niously, forge and adhibit, or cause or procure to be forged and adhi- 
Fairwea- oited, upon a bill of exchange or other writing, in the following or 
ther. similar terms : — 



High Court ' James Fairweather 

*2J *■ * £400 Stg 4 Dundee 27th December 1860. 

— * Four months after date pay to my order in London the sum of 

Forgery, t Four hundred pounds stg value received 
4 To Mess™ Schimmel & Co 
' Amsterdam/ 
the subscription ' Schimmel & Co, 1 or a similar subscription, as the 
subscription of the acceptors of said bill of exchange or other writing, 
intending the same to pass for and be received as the genuine subscrip- 
tion of a firm of the name of Schimmel and Company to the prosecutor 
unknown, or the same being a wholly false and fictitious subscription : 
Further, the Baid James Fairweather having adhibited his own sub- 
scription upon said bill of exchange or other writing as drawer thereof 
and having also adhibited his own subscription upon the back of said 
bill of exchange or other writing as indorser thereof, did, on the 3d 
day of January 1861, or on one or other of the days of that month, or 
of December immediately preceding, or of February immediately fol- 
lowing, at or near the principal post-office in or near High Street of 
Dundee, or at or near some other post-office in or near Dundee or in the 
shire of Forfar or in Scotland to the prosecutor unknown, wickedly and 
feloniously, use and utter, as genuine, the said forged bill of exchange 
or other writing, having thereon the said forged subscription, knowing 
the same to be forged, by then and there posting the said forged bill 
of exchange or other writing, or causing or procuring the same to be 
then and there posted, enclosed in an envelope or cover addressed to 
George Anderson, now or lately residing in or near Charles Street, 
Saint Rollox, in or near Glasgow, and then and now or lately manager 
to the firm of Alexander Fletcher and Company, then and now or 
lately carrying on business as flax-spinners in or near Garngad Road, 
in or near Saint Rollox aforesaid, or addressed to the said firm of 
Alexander Fletcher and Company, for the purpose of the said forged 
bill of exchange or other writing being transmitted by post, and de- 
livered to or received by the eaid George Anderson, or the said firm 
of Alexander Fletcher and Company, in order that the said George 
Anderson, or the said firm of Alexander Fletcher and Company, might 
place the same to the credit of the said James Fairweather in his ac- 
count with the said firm of Alexander Fletcher and Company, or dis- 
count the same, or cause or procure the same to be discounted ; and 
the said forged bill of exchange or other writing, having thereon the 
said forged subscription, was transmitted by post, enclosed in said en- 
velope or cover, and was in course of post, or shortly thereafter, de- 
livered to or received by the said George Anderson, or some other 



AND CIRCUIT COURTS OP JUSTICIARY. 121 

person acting for behoof of the said firm of Alexander Fletcher and *Jo. 2 *» 
Company to the prosecutor unknown, in or near the office or business Fairwe*- 
premises in or near Garngad Road aforesaid, then occupied by the ther * 
said firm of Alexander Fletcher and Company, or elsewhere in or near High Court. 
Glasgow to the prosecutor unknown, and the same was afterwards 1861." 
placed to the credit of the said James Fairweather in his account with Forgery, 
the said firm of Alexander Fletcher and Company, or was discounted, or lo- 
calised or procured to be discounted, by the said George Anderson, or by 
the said firm of Alexander Fletcher and Company : Likeas (2.), on 
the 1st day of January 1861, or on one or other of the days of that 
month, or of December immediately preceding, or of February imme- 
diately following, in or near the said office or business premises situ- 
ated in or near Meadowside, Dundee, then occupied by the said James * 
Fairweather, or at some other time or place in or near Dundee, or in 
the shire of Forfar or in Scotland to the prosecutor unknown, the said 
James Fairweather did, wickedly and feloniously, forge and adhibit, 
or cause or procure to be forged and adhibited, upon a bill of exchange 
or other writing in the following or similar terms : — 
4 £750 . . Stg. ' Dundee 1* January 1861 

4 Four Months after date pay to my order in London the Sum of 
4 Seven hundred & fifty pounds Sterling value received 
1 To M* Hermann Scheler 
' Barcelona.' 
the subscription ( Hermann Scheler/ or a similar subscription, as the 
subscription of the acceptor of said bill of exchange or other writing 
last above libelled, intending the same to pass for and be received as 
the genuine subscription of Hermann Scheler, then and now or lately 
carrying on business as agent or merchant in or near Barcelona, or as 
the genuine subscription of some other person to the prosecutor un- 
known, or the same being a wholly false and fictitious subscription : 
Further, the said James Fairweather having adhibited his own sub- 
scription upon said bill of exchange or other writing last above libelled 
as drawer thereof, and having also adhibited his own subscription on 
the back of the same as indorser thereof, did, on the 26th day of Ja- 
nuary 1861, or on one or other of the days of that month, or of De- 
cember immediately preceding, or of February immediately following, 
at or near the said principal post-office in or near High Street of Dun- 
dee, or at or near some other post-office in or near Dundee or in the 
shire of Forfar or in Scotland to the prosecutor unknown, wickedly 
and feloniously, use and utter, as genuine, the said forged bill of ex- 
change or other writing last above libelled, having thereon the said 
forged subscription, knowing the same to be forged, by then and there 
posting the said forged bill of exchange or other writing last above li- 
belled, or causing or procuring the same to be then and there posted, 
enclosed in an envelope or cover, addressed to the said firm of Alex- 



122 CASES BEFORE THE HIGH COtTBT 

No. 24. mider Fletcher and Company, or to the said George Anderson, for the 

Fairway purpose of the said forged bill of exchange or other writing last above 

ther. libelled being transmitted by post, and delivered to or received by the 

High Court said George Anderson, or the said firm of Alexander Fletcher and 

iJJi.' Company, in order that the said George Anderson, or the said firm 

— of Alexander Fletcher and Company, might place the same to the ere- 

£c. dit of the said James Fairweather in his account with the said firm of 
Alexander Fletcher and Company, or discount the same, or cause or 
procure the same to be discounted; and the said forged bill of exchange 
or other writing last above libelled, having thereon the said forged sub- 
scription, was transmitted by post, enclosed in said envelope or cover, 
and was in course of post, or shortly thereafter, delivered to or received 
by the said George Anderson, or some other person acting for behoof 
of the said firm of Alexander Fletcher and Company, to the prosecutor 
unknown, in or near the said office or business premises in or near 
Gamgad Road aforesaid, then occupied by the said firm, or elsewhere 
in or near Glasgow to the proaeoutor unknown, and the same was af- 
terwards placed to the credit of the said James Fairweather in his 
account with the said firm of Alexander Fletcher and Company, or 
was discounted, or caused or procured to be discounted, by the said 
George Anderson, or by the said firm of Alexander Fletcher and Com- 
pany. 

The indictment set forth two other similar charged* 
' The counsel for the panel objected to the libel, that 
' too great latitude was taken in regard to the locus, in 
' libelling that the bills had been posted at or near the 
' principal office in or near High Street of Dundee, or 
' some other post-office in or near Dundee, or in the 
4 Shire of Forfar or in Scotland. 9 They contended 
that were such latitude admitted, the panels could not 
avail themselves of the defence of alibi, which they 
might otherwise have been able to prove. Besides, put- 
ting the letter in the Post-Office was the completed act 
of uttering, its subsequent history, and its reaching Glas- 
gow, was no proper part of the act of uttering. 

Counsel for the prosecution contended, that in the 
circumstances stated in the libel, the latitude wa* allow- 
able, the offence was, in fact, a list of continuous crime, 
begun at the place where the bill was posted, and con- 
tinued to Glasgow, where it was to be received. 

The Lord Justice-Clerk said, — I had a little diffi- 



AND CIRCUIT COURTS OP JUSTICIARY. 128 

culty about this objection at first ; but that difficulty is n^m. 
entirely removed on considering the manner of libelling Fairwe*- 
the locus here. I understand that the prosecutor under- ' 

takes to prove that the bills were posted at Dundee ; bee. 2. 

but if he cannot do that, then he cannot prove another — 

hcus in Forfarshire, and must rely on the transmission "aT 7 * 
of the letter to Glasgow by the panel. He could not 
be allowed to prove a direct act of posting in some other 
Post-Office in Scotland. 

Lord Ivory, while he felt the objection to be one of 
some delicacy, and not unattended with difficulty, was 
of opinion that it was not well founded. 

Lord Cowan also concurred in repelling the objec- 
tion. 

Lancaster, for the panel, then objected to certain do- 
cuments in the inventory (numbers 86 to 119), on these 
grounds. The panel was first committed on the 1st 
June on the first bill of exchange only. He was again 
committed on the other three on the 18th July. On 
the 8th August, the Procurator-Fiscal, with a criminal- 
officer (Murray) came into the cell, and, without war- 
rant, searched the prisoner, and took from his person in 
the cell, these documents. 

The objection was reserved till the documents should 
be tendered in evidence. 

The libel having been proved relevant, the panel 
pleaded guilty of the first two charges of uttering, as 
libelled. 

Sentence, eight years' penal servitude. 



124 CASES BEFORE THE HIGH COURT 



Dec. 9. Present, 

1861. 

The Lord Justice-Clerk, 
Lords Ardmillah and Neates. 

Her Majesty's Advocate— Sol-Gen. Maitland—Maitland- 
Heriot A.D. 

AGAINST 

James Reid— Frcuer — W. A. Brown. 
George Davidson — Mair. 

AND 

George M'Neill — Eraser — W. A. Brown. 

Rape— Assault with Intent to Ravish — Special Defence — 
Character — Notice to Prosecutor. — In a charge of rape, al- 
though the unchaste character of the woman said to have been 
ravished is not matter of defence, due notice must be given to the 
prosecutor if the panel intends to lead evidence of the woman's un- 
chastity. 2. It is incompetent to lead evidence in respect to charac- 
ter, other than at or about the time of the alleged offence. 3. It is 
incompetent to lead evidence in proof of character on points colla- 
teral to the issue, and not forming part of the res gestm. 

No. 25. James Reid, George Davidson, and George M'Neill, 
fothen. were charged with Rape, or Assault with Intent to Ra- 
il i*h Court, vish, committed on the person of Agnes Edington or 
1861." Arrowsmith, now or lately residing in or near Preston- 
Rape, &c pans, in the county of Haddington, wife of Henry Ar- 
rowsmith, lately Major in the 38th or other Regiment of 
Foot, now residing in the Mauritius, or elsewhere abroad. 
The panels pleaded Not Guilty, and they lodged 
special defences, in which, besides a plea of alibi, ' they 
' farther state, that Mrs Agnes Edington or Arrowsmith 
' is a person of unchaste character, and has had carnal 
' connexion with men other than the person said in the 
' indictment to be her husband. 1 



AND CIRCUIT COURTS OF JUSTICIARY. 125 

The Court directed the allegation of unchastity to be No. 25. 
deleted as a special defence, and to be stated merely as & others, 
a notice of the panels' intention to lead evidence of the HighConrt. 
unchastity of the woman said to have been ravished. 1861." 

The statement was therefore amended as follows : — B*pe, &c 

' They farther give notice, that they allege and intend 
1 to prove that Mrs Agnes Edington or Arrowsmith is a 
' person of unchaste character/ &c. 

In cross-examination, the principal witness deponed — 

I was married in London ; I was then staying with friends named 
Cotterel. I had been living three years with them. Q. What was 
their business ? A. He was studying for the bar. I was not a servant 
in the house. Q. Did your husband first see you at a gay house ? 
A. I don't know what you mean. One of my sons is in an office in 
Sydney, the other is doing nothing. They never were common soldiers. 
I have lived in Waterloo Place, Edinburgh. I don't know Mary 
Spence, and never heard of her. I don't remember of having a ser- 
vant of that name. I have not within eighteen months gone to Mary 
Spence and asked her to come back to my service. [Shown No. 18 of 
the panels' list of witnesses]. I never saw that woman before. No 
men have slept with me when I was in Edinburgh. 

For the defence, Mary Spence was adduced as a wit- 
ness, and — 

' The counsel for the panels having been requested to 
1 state the nature of the facts he proposed to prove by 
' this witness, answered, that his object in her exami- 
' nation was twofold, 1st, to contradict the evidence of 
' the principal witness, in respect to certain circum- 
' stances alleged to have taken place in her presence in 
' the house of one Kerr at Haddington, between three 
' and four years ago, but having no relation to the pre- 
' sent case. 2d, To establish the unchaste character 
' and conduct of the said witness at a past period, 
' the exact date of which he could not precisely state, 
( but occurring certainly a number of years ago.' Re- 
ference was made to Dickson on Evidence, and the 
authorities there cited, and counsel argued, that he 
would be entitled, taking into account the admissions 



126 CASES BEFORE THR HIOH COURT 

J N * Red 1M ^ V01ira J ) l e *° ber character, which the principal wit- 

* othm ne88 had made on cross-examination, to put it to the 

Hi j££r* Jury that the bad character which had been established 

1861." a number of years back was, by implication, to be held 

R*pe, *a to apply to the date of the alleged offence, and he was 

therefore entitled to lead the evidence he proposed. 

He referred to Hume, vol. i. p. 304 ; Alexander Stephens, 

Aberdeen, April 20. 1839, Swinton, vol. ii. p. 848 ; 

David Allan, Glasgow, Dec. 27. 1842, Broun, vol. i 

p. 500 ; Walter Blair, Glasgow, May 4. 1844, Broun, 

vol. ii. p. 167 ; Francis Dignan, High Court, Jan. 23, 

1854, Irvine, vol. i. p. 357. 

In regard to the second point, counsel argued, that 
everything that was material to the interests of the 
panels was pertinent to the issue, and if, by obtaining 
contradictions on collateral points, he could succeed in 
impeaching the credibility of the witness, such evidence 
as favourable to the panels was competent to him. He 
was therefore entitled to examine this witness to con- 
tradict the special statements made by the principal 
witness in regard to her, 15th and 16th Vict. c. 27, 
secL. «). 

The Solicitor- General, for the prosecution, answered 
—That no evidence was competent on any point that 
did not form part of the res gesta, and that no notice 
was given in the special defence lodged for the panels, 
of the date at which the alleged bad character of the 
principal witness was proposed to be established, such 
evidence was incompetent as to any time, except the 
period when the offence was said to have been com 
mittecL 

Lord Ardmeluln. — Two questions have been raised 
in this case — both of some degree of importance. I am 
of opinion, that the proposal now made to lead evidence 
in regard to the previous character and conduct of this 
woman is of a very unusual description, and one which 
would require to be most strictly looked to on the part 
of the Court. The time to which the proposed evi- 



AND CIBCUIT O0UBT8 OF JV8TI01ABY. 127 

denoe relates is very remote, and the couuflel for the No. 25. 
panels is not prepared to state that he can connect that &ott»n. 
remote period with the more recent history of the Highcourt 
woman, by other evidence bringing it down to the pre- lsei/ 
sent time. It would, in my opinion, be most unfair to &!»,*«. 
the woman, to admit evidenoe of what is said to have 
taken place, it may be twelve, fifteen, or eighteen years 
ago; at all events, without much more distinct and 
specific notice than has been given in this case. 

I do not think that what is here proposed is at all 
within the recognised rule as applicable to charges of 
rape. That rule, as I understand it, applies to proof of 
unchastity at and immediately before the time when the 
rape is said to have been committed. The prisoners' 
counsel may, if he thinks fit, carry that evidenoe of re- 
pute as far back as he pleases, in order to confirm it, 
but to begin the proof at a period many years back- 
more especially as no precedent or authority has been 
shown to us for such a course — appears to me to be a 
proceeding which cannot be sanctioned by the Court. 
Farther, as I understand from the prisoners' counsel, 
what he proposes to adduce is not a proof of prostitu- 
tion, or even of reputed and notorious unchastity, but 
proof of particular acts of unchastity, or particular un- 
chaste connection or relation as ' kept mistress' of a par- 
ticular man, while, in regard to the man, or the rela- 
tion, no name, or date, or place, is specified in the de- 
fence*. To allow this proof, without the most specific 
and distinct notice as to name, place, and date, would, 
in my opinion, be unjust to the witness, whom the 
Court i$ bound to protect against an attack without 
notice. 

As to the other question, I need only say that, taking 
into consideration both the words of the recent Act of 
Parliament, and our previous rules of evidence, I am of 
opinion, that the proof proposed to be led of collateral 
circumstances, occurring also a long time ago, is quite 



1 28 CASES BEFORE THE HIGH COURT 

JmL°" aid i na dnussible as having no immediate bearing — no perti- 
& others, nency or relevancy to the question at issue. 
m $£°9 Ttm Lord Neaves. — I am of the same opinion. I think, 
_i86i- in the first place, that it is clearly competent to impeach 
Rape, &c. the character of the principal witness in a case of rape, 
to allege and to prove her bad character, but then that 
must be her bad character at the time when the injury 
results. If it is alleged that this character was acquired at 
an earlier period, still it is necessary that it be establish- 
ed by something like continuous evidence up to the 
time of the alleged offence. This is of great importance 
to the witness, because it may be easy for her to contra- 
dict proof of bad conduct at a particular time and plafce. 
She may prove, for example, that she was not there, but 
in another part of the country, at the time. But the 
proof here offered seems to me to be inadmissible. I 
think there is no real pertinency in it, and that it would 
be most dangerous. To attempt to lead evidence as to a 
course of conduct many years back — perhaps in another 
country, would be quite irrelevant — at least unless un- 
der very special circumstances, and with the most dis- 
tinct and special notice as to the party, the place, and 
the time. 

Now here it is attempted to prove not bad repu- 
tation, but latent acts of individual unchastity at 
a great distance of time. I can imagine nothing 
more unfair, nothing more dangerous. Here the en- 
quiry is, whether these panels had forcible connexion 
with the witness. If in the trial of such a case, the 
woman may be made to answer twenty different ques- 
tions, as to whether on twenty different occasions she 
had connexion with as many different men, we might 
sit to the end of our lives investigating such cases. I 
conceive that such a course would be contrary to the 
principles of justice, and of judicial enquiry. In the 
present case, no specific notice has been given of such 
an enquiry, but even if there had, I should regard such 



AND CIRCUIT COURTS OP JUSTICIARY. 129 

an enquiry into the whole latent life of the witness as a No. 26. 

^ J . James Reid 

cruel and grievous evil. * othen. 

As to the other point which has been raised, I think High court, 
the question irrelevant, and the line of enquiry proposed i86i.' 
clearly incompetent. I adhere generally to the views R»pe,&c. 
of Lord Moncreiff, expressed in one of the cases that 
have been quoted to us. The only instances I can ima- 
gine where such proof would be admissible, would be 
where the alleged occurrences were so closely connected 
with the crime charged, as to form, in fact, part of the 
res gestce, as where, for example, as happened in one 
case, the woman alleged to have been ravished had con- 
nexion with another man on the night of the alleged 
occurrence. 

The Lord Justice-Clerk. — I am entirely of the same 
opinion ; and were it not that the questions are of con- 
siderable importance, I should have contented myself 
with expressing my concurrence in general terms. It 
seems to me, that under the first branch, we have to 
consider two questions. Is the panel in such a case to 
be allowed without notice, or even with notice, to prove 
specific acts of unchastity, and are we to admit evidence 
of general bad repute without any limit as to time ? I 
have always entertained a strong opinion, in conformity 
with that of Lord Moncreiff. It is for the panels to 
show that at the time when the offence is said to have 
been committed, the woman was of loose and immoral 
character, not as matter of defence, but as bearing very 
materially on the effect of the evidence on the minds 
of the jury. The law has done wisely in making an 
exception in the case of rape from the general rule, that 
you cannot raise up a collateral issue, and allow a proof 
of a witness' character and repute. But to extend this 
to particular instances of unchaste conduct would be 
most unfair to the witness, especially without very 
pointed and distinct notice, and even with such notice. 

But, 2d, What is here sought to be proved, is general 

VOL. iv. t 



130 CASES BEFORE THE HIGH COURT 

j No - 2 JL ..evidence of reputation or character, not more recent 
& others, than many years ago, which is all we could gather from 
H if£ C 9 Urt * *^ e s * atement °f *h e prisoners' counsel. The Court are 
i86i. not in possession of any more specific information as to 
Rape, &c. date. Now, I object to this line of examination, very 
much on the same grounds as I object to proof of indi- 
vidual acts, because if a woman is in possession of a fair 
and honourable reputation at the time of the alleged 
offence, it would be in the highest degree unjust and in- 
expedient to enquire into her character at some former 
time. She may have been indiscreet, or even unchaste, 
in her conduct at some period of her life ; but if she is 
not so now, I do not think the enquiry relevant. I hold 
it to be indispensable, that the character sought to be 
proved, should be the character existing at the time 
when the rape is said to have been committed. 

Another point has been raised, not indeed of the 
same importance, and as to it, I have no difficulty. 
The proof attempted of particular circumstances and 
incidents in this woman's life, merely for the purpose 
of contradicting the statements made by her on cross- 
examination, seems to me to have no pertinency or 
relevancy at all. I hold it to be established law, that 
such proof is inadmissible, and the laws of all countries 
agree in disallowing it. 

The proposed evidence was therefore disallowed. 

The Jury, by a majority, found the panels guilty of 
rape as libelled. 

The Court sentenced the panels to be each kept in 
penal servitude for twenty-one years. 



AND CIRCUIT COURTS OF JUSTICIARY. 131 



Present, 

Dee. 16. 

The Lord Justice-Clerk, ,861 - 

Lords Ivory and Cowan. 

Her Majesty's Advocate — Sol Qen. MaxUand — 
Maitland-Heriot A J). 

AGAINST 

Bernard Macnamara — Mair. 

Assault — Proof — Witness, Medical — Medical Report — Statute 
21st and 22d Vict. c. 90. — The provision in the Medical Practi- 
tioners' Act (21st and 22d Vict, c 90), that no medical certificate 
required by any act shall be valid unless the person signing it be 
registered under the Act, does not apply to a medical report pro- 
posed to be read in and proved in a criminal trial in the Court of 
Justiciary. 

The panel was indicted for assault to the effusion of No. 26. 
blood, the injury of the person, and danger of life. m***- 

The Crown adduced as a witness a gentleman who "*"* 
acted as house-surgeon in the Royal Infirmary, Edin- H j£5^ t 
burgh, to prove a medical report signed by him, in re- _ 186U 
ference to the injuries on the person of the assaulted 
party. 

Mair, for the panel, objected, that the report was in- 
admissible, because the witness was not a licentiate of 
medicine or surgery, nor a graduate of any university, 
nor registered under the Medical Practitioners' Act, 21st 
and 22d Vict. c. 90. It was enacted by the 37th section 
of that Act, that 'from and after 1st January 1859, no 
1 certificate required by any Act now in force, or that 
' may hereafter be passed, from any physician, surgeon, 
' licentiate in medicine and surgery, or other medical 
' practitioner, shall be valid, unless the person signing 
1 the same be registered under this Act.' The date 
when this provision was to come in force had been al- 
tered by subsequent Acts, but the provision was in 
force. 



132 CASES BEFORE THE HIGH COURT 

n*26. The Court was of opinion that the Act did not apply 
Macna- to reports proposed to be read as evidence in Court, but 
mapa * to cases where medical certificates were required. In a 



Dec. 16. court of law a medical certificate was not indispensable- 
■ It was merely put into the hands of the medical witness 
to aid his memory, and, therefore, the report was com- 
petent, and might be used in the present case. 



1861. 
Assault. 



Dec. 31. 
1861. 



GLASGOW WINTER CIRCUIT. 

Judge — Lord Ardmillan. 
Her Majesty's Advocate — W. Ivory A.D. 

AGAINST 

Reuben Brooks — MiUar—Jokn Burnet. 

AND 

Frederick:- William Thomas — Maclean. 

Falsehood and Fraud— False Witness — Forgery. — Objections to 
the relevancy of an indictment charging ' Falsehood and fraud ; as 
4 also fabricating and using false writings ; as also forgery ; as also 
4 using and uttering a forged bill of exchange or other writing/ — 
repelled. 

No. 27. Reuben Brooks and Frederick William Thomas were 
Brooks & charged on criminal letters, — 

Frederick 

W illiam 

Thomas. That ALBEIT, by the laws of this and of every other well-gorerned 
Glasgow, realm, Falsehood and Frand ; As also the wickedly and feloniously 
D* * 8, « Fabricating any False Writing to be used in a sequestration for the 
purpose of a pretended creditor attending, voting, or acting therein as 



andF^-wHi * true crodta*) "^ 80 ^ing ^ e 8ame ** true J A<* &lso the wickedly 

Ac and feloniously Using and Uttering, as true, any False and Fabricated 

Writing, knowing the same to be false and fabricated, by producing 

the same in a sequestration for the purpose of a pretended creditor 

attending, voting, or acting as a true creditor therein ; As also For- 



AND CIRCUIT COURTS OF JUSTICIARY. 133 

gery; As also the wickedly and feloniously Using and Uttering, as No. 27. 
genuine, any Forged Bill of Exchange or other Writing, having Brook £ 
thereon any forged subscription, knowing the same to be forged, are ^J£ d ? rick 
crimes of an heinous nature, and severely punishable : Yet true it is Thomas. 
axd of verity, that the said Reuben Brooks and Frederick William ~^ lafigow# 
Thomas are, both and each or one or other of them, guilty of the said D«c 31. 
crimes, or of one or more of them, actors or actor, or art and part : In . 



so fib as the said Reuben BrookB having, for some time previous to p *}n hoo £ 
the month of June 1861, carried on business as a picture-dealer in or &<% 
near Buchanan Street, in or near Glasgow; and the said Reuben 
Brooks having become indebted to Samuel Barton, merchant-tailor in 
or near Newcastle-upon-Tyne ; Stephen Edward Trought, carver and 
gilder in or near Waterloo Street of Glasgow, and other creditors ; 
snd the affairs of the said Reuben Brooks having become embarrassed, 
tod the estates of the said Reuben Brooks having been sequestrated, 
ud declared to belong to his creditors, for the purposes of the ' Bank- 
' raptcy (Scotland) Act 1856,' and of [page 2] the ( Bankruptcy and 
' Real Securities (Scotland) Act, 1857/ and of the ' Bankruptcy 
' (Scotland) Amendment Act, 1860/ by a deliverance of the Sheriff- 
substitute of Lanarkshire, dated on or about the 8th day of July 
1861 ; or the said Reuben Brooks having it in contemplation to obtain 
sequestration of his estates under the said Acts ; and the said Reuben 
Brooks and Frederick William Thomas having, both and each or one 
or other of them, devised a fraudulent plan to forge and fabricate, or 
erase or procure to be forged and fabricated, false and fraudulent bills 
of exchange, affidavits or oaths of verity, or other writings, and to 
produce the same, or cause or procure the same to be produced, by 
pretended creditors of the said Reuben Brooks in said sequestration, 
for the purpose of the said pretended creditors, by themselves or their 
mandatory or mandatories, or others authorised by them, attending, 
▼oting, and acting at meetings of the creditors in said sequestration, 
and influencing the election of a trustee and commissioners therein, 
and enabling the said Reuben Brooks to obtain personal protection 
from arrest and imprisonment, and otherwise defrauding the said 
Samuel Barton, Stephen Edward Trought, and other creditors of the 
aid Reuben Brooks, or for one or more of said purposes, or for some 
similar fraudulent purpose: And in particular (1.) the said Reuben 
Brooks and Frederick William Thomas did, both and each or one or 
other of them, on an occasion or occasions between the 1st day of June 
and the 10th day of July 1861, the particular time being to the pro- 
secutor unknown, or on one or other of the days of the said months, 
or of May immediately preceding, or of August immediately following, 
in or near the office or business premises situated in or near Saint 
Vincent Street, in or near Glasgow, then occupied by the said Frede- 
rick William Thomas, or at some other time or times, or at some 



134 CASES BEFORE THE HIGH COURT 

No. 27. other place or places, in or near Glasgow or in the shire of Lanark to 
Brooks'*. *^ e P* 086811 * * unknown, falsely, fraudulently, wilfully, wickedly and 
Frederick feloniously, and in pursuance of the fraudulent plan above libelled, 
ThornM *****> an ^ fabricate, or cause or procure to be written and fabricated, 
a bill of exchange or other writing in the following or similar terms : 



Pecfsi! [Then followed a specification of three bills for £300 each, dated 
1861 » London, Dec. 21, 1858, payable at nine months, twelve months, and 
Falsehood six months respectively] ; [page 4] and the said Reuben Brooks did, 
Mld r raad ' tmie or times and place or places last above libelled, falsely, fraudu- 
lently, wilfully, wickedly, and feloniously, and in pursuance of said 
fraudulent plan, subscribe his own name as acceptor upon all and each 
or one or more of the said three false and fabricated bills of exchange 
or other writings ; and the said Reuben Brooks and Frederick William 
Thomas having, both and each or one or other of them, in pursuance 
of said fraudulent plan, caused or procured Frederick Hartmann, 
merchant, then and now or lately residing in or near Cannon Street, 
in or near London, to adhibit his signature on all and each or one or 
more of the said three false and fabricated bills of exchange or other 
writings, as drawer thereof and to compear before Warren Stormes 
Hale, Esquire, one of our Justices of the Peace for the City of London, 
at London, on or about the 13th day of July 1861, and falsely and 
fraudulently to swear and depone, in presence of the said Warren 
Stormes Hale, that the said Reuben Brooks was, at the date of the 
said sequestration, justly indebted and resting-owing to him the said 
Frederick Hartmann in the sum of £900 sterling, contained in the 
said three false and fabricated bills of exchange or other writings 
above libelled, and to subscribe his name to a false and fabricated 
affidavit or oath of verity, dated at London the 13th day of July 
1861, in which the said false and fraudulent deposition was engrossed; 
and the said Reuben Brooks and Frederick William Thomas having, 
both and each or one or other of them, caused or procured the said 
Frederick Hartmann to subscribe a mandate, annexed to said false 
and fabricated affidavit or oath of verity or other document, authoris- 
ing the said Frederick William Thomas, therein designed Frederick 
Thomas, of the firm of M'Coton and Thomas, accountants, Glasgow, 
to attend, vote, and act for him, the said Frederick Hartmann, at all 
meetings of the creditors in said sequestration, and William Lyon 
M'Phun, accountant, now or lately residing in or near Great Kelvin 
Terrace, Great Western Road, in or near Glasgow, having inserted 
his own name as mandatory above the name of the said Frederick 
William Thomas, or Frederick Thomas, in said mandate, the said 
Reuben Brooks and Frederick William Thomas did, both and each or 
one or other of them, on the [page 5] 16th day of July 1861, or on 
one or other of the days of that month, or of June immediately pre- 
ceding, or of August immediately following, at a meeting of the 



AND CIRCUIT COURTS OF JUSTICIARY. 1 35 

creditors in said sequestration, in or near the Crow Hotel, in or near No. 27. 
George Square of Glasgow, falsely, fraudulently, wilfully, wickedly, b^ 11 ^! 
and feloniously, and in pursuance of said fraudulent plan, use and Frederick 
utter, as true, all and each or one or more of the said three false and 2f miam 
f abri c a t ed bills of exchange or other writings above libelled, and said - 



relative false and fabricated affidavit or oath of verity, having the said Decfs*' 
pretended mandate annexed thereto, by giving in or producing the 1861 » 
same, or causing or procuring the same to be given in or produced, in Falsehood 
said sequestration, by the said William Lyon M'Phun, or by some M ^ u * 
other person to the prosecutor unknown ; and all this the said Reuben 
Brooks and Frederick William Thomas did, both and each or one or 
other of them, intending all and each or one or more of the said three 
false and fabricated bills of exchange or other writings above libelled 
to pass for and be received as true bills of exchange or other writings 
truly drawn, of the dates they respectively bear, by the said Frederick 
Hartmann upon the said Reuben Brooks, for the sums respectively 
therein mentioned, and truly accepted by the said Reuben Brooks, 
and intending the said affidavit to pass for and be received as a true 
affidavit, and for the purpose of the said Frederick Hartmann, by 
himself or his mandatory, attending, voting, and acting as a true 
creditor of the said Reuben Brooks for the sum of £900 or thereby, 
at a meeting or meetings of the creditors in said sequestration, and 
influencing the election of a trustee and commissioners, and enabling 
the said Reuben Brooks to obtain personal protection from arrest and 
imprisonment, and otherwise defrauding the said creditors of the said 
Reuben Brooks, or for one or other of said purposes, or for some 
similar fraudulent purpose, notwithstanding that the said Reuben 
Brooks and Frederick William Thomas did, both and each or one or 
other of them, well know that the said Frederick Hartmann was not a 
creditor of the said Reuben Brooks, on any ground, or to any extent 
whatever, and that all and each or one or more of the said three bills 
of exchange or other writings, and said affidavits, were wholly false and 
fabricated ; and the said William Lyon M'Phun did, in virtue of said 
pretended mandate, on or about the said 16th day of July 1861, attend 
a meeting of the creditors in said sequestration, held in the Crow 
[page 6] Hotel as aforesaid, and did then and there vote and act in 
said sequestration, in the election of a trustee and commissioners, and 
in granting the said Reuben Brooks personal protection from arrest and 
imprisonment, and otherwise on behalf of the said Frederick Hart- 
mann, in respect of said false and pretended debt of £900 ; and per- 
sonal protection from arrest and imprisonment was, in consequence, 
at said meeting held as aforesaid, granted to the said Reuben Brooks 
for the period of two years. 

The indictment then set forth two other charges. 



136 CASES BEFORE HIGH COURT 

No. 27. The fourth charge was thus stated : — 

Reuben ° 

Brooks & [Page 13] Likeas (4.) the said Reuben Brooks and Frederick 

William William Thomas did, both and each or one or other of them, on the 

Thomas. 16th day of July 1861, or on one or other of the days of that month, 

Glasgow, or of June immediately preceding, or of August immediately following, 

~J5* jj* 1 * in or near the office or business premises situated in or near Saint 
Vincent Street, in or near Glasgow, then occupied by the said Frede- 



and Fraud "ck William Thomas, or at some other time or times, or at some 
&e. other place or places, in or near Glasgow, or in the shire of Lanark, 
to the prosecutor unknown, falsely, fraudulently, wilfully, wickedly, 
and feloniously, and in pursuance of said fraudulent plan, enter or 
insert, or cause or procure to be entered or inserted, in a false and 
fraudulent state of affairs of the said Reuben Brooks, which the said 
Reuben Brooks and Frederick William Thomas did, both and each or 
one or other of them, make or fabricate, or cause or procure to be 
made and fabricated, the said sum of £900 sterling as a debt due by 
the said Reuben Brooks to the said Frederick Hartmann, the said 
sum of £6000 sterling as a debt due by the said Reuben Brooks to 
the said firm of Solmson, Meyer, and Company, and the said sum of 
£4300 sterling as a debt due by the said Reuben Brooks to the 
[page 14] said Jehu Hunt, under the name of J. Hart, the said 
Reuben Brooks and Frederick William Thomas, both and each or one 
or other of them, well knowing that the said several Bums were not 
due respectively to the said Frederick Hartmann, Solmson, Meyer, 
and Company, and the said Jehu Hunt, by the said Reuben Brooks ; 
and the said Reuben Brooks and Frederick William Thomas did, both 
and each or one or other of them, on the 16th day of July 1861, or on 
one or other of the days of that month, or of June immediately preced- 
ing, or of August immediately following, at a meeting of creditors in 
said sequestration in or near the Crow Hotel aforesaid, falsely, fraudu- 
lently, wilfully, wickedly, and feloniously, and in pursuance of said 
fraudulent plan, use and utter as true the said false and fabricated 
state of affairs, containing the said false and fabricated entries above 
libelled, by giving in or producing the same, or causing or procuring the 
same to be given in or produced, in said sequestration, by the said Wil- 
liam Lyon M'Phun, or by some other person to the prosecutor unknown; 
and all this the said Reuben Brooks and Frederick William Thomas 
did, both and each or one or other of them, in pursuance of said fraudu- 
lent plan, intending the said false and fabricated state of affairs to be 
received as the true state of affairs of the said Reuben Brooks at the 
said 16th day of July 1861, and for the purpose of the said Frederick 
Hartmann, Solmson, Meyer, and Company, and the said Jehu Hunt, 
or one or more of them, by themselves or their mandatories, attending, 
voting, and acting as true creditors of the said Reuben Brooks for the 
said sums respectively, at a meeting or meetings of creditors in said 



AND CIRCUIT COURTS OP JUSTICIARY. j 37 

sequestration, and influencing the election of a trustee and commia- No. 27. 
sioners, and enabling the said Reuben Brooks to obtain personal pro- ^^ & 
tection from arrest or imprisonment, and otherwise defrauding the Frederick 
said creditors of the said Reuben Brooks, or for one or other of said J^JjJjJ? 

purposes, or for some similar fraudulent purpose, notwithstanding that — 

the said Reuben Brooks and Frederick William Thomas did, both and Dec. 31.' 
each or one or other of them, well know that the said Frederick Hart- J861 - 
maun, Solmson, Meyer, and Company, and Jehu Hunt, were not Falsehood 
creditors of the said Reuben Brooks on any ground or to any extent &Q. ' 
whatever, and that the said state of affairs, or at least the said entries 
therein, were wholly false and fabricated: And the said Reuben 
Brooks and Frederick William [page 15] Thomas are each of them 
respectively guilty, actor or art and part, of all and each or one or 
more of the several acts of falsehood and fraud, fabricating and using 
and uttering false writings, and forgery, and using and uttering forged 
bills of exchange above libelled, as committed by one or other of them 
respectively, by being cognizant of and aiding, abetting, and assisting 
in the same, in pursuance of the said fraudulent plan, or otherwise as 
above libelled. 

Burnet and Millar for the panel, objected to the 
relevancy of the libel — 1. There was no minor proposi- 
tion applicable to the major of falsehood and fraud, 
which must therefore be struck out as cumulative with 
the subsequent charges. 

The objection was repelled. 

2. The charge of forgery as regarded Brooks was not 
supported by a specific statement in the minor that he 
was guilty thereof, but only by the general clause to- 
wards the end of the indictment at foot of page 14 and 
top of page 15. 

The objection was repelled in respect of the clause 
just referred to. 

3. The general charge as stated in the minor proposi- 
tion, beginning with the words ' In so far as/ on the 
first page of the indictment, and ending at the middle 
of page 2, was unintelligible, as it consisted of an un- 
finished sentence, entirely parenthetical. 

Lord Aedmillan held that the objection would be 
removed by striking out the words ' And in particular/ 
which introduced the special charges, thus connecting 
the general with the special charges. 



138 OASES BEFORE THE HIGH COURT 

RribL ^ *kk being done, he repelled the objection. 
Brooks & 4. The clause ' and otherwise defrauding the said 
wiiium ' Samuel Barton, Stephen Edward Trought, and other 
Thomas. < cre ^ orB f ^ e g^ Reuben Brooks/ was too great a 



Dec 3L latitude for the prosecutor to take. 



1861 



The Court ordered these words to be deleted. 



and Fraud, 5. There was no relevant charge of uttering. The 
*•" charge made at pages 4 and 5 may be taken to repre- 
sent all the minor propositions applicable to this charge, 
commencing with the words on page 4, ' and William 
' Lyon M'Phun, accountant,' &c., down to page 5, ' or 
' by some other person to the prosecutor unknown/ 
The objection to this charge was that, first of all, it was 
not said that William Lyon M'Phun was a pretended 
creditor, which was an essential element in the crime 
charged in the major ; and secondly, that M'Phun was 
not said to have had any authority from either of the 
accused persons to insert his name as mandatory, which 
was necessary to incriminate the accused on this charge, 
as it was ' in virtue of said pretended mandate ' that 
M'Phun was alleged to have attended, voted, and acted 
in the sequestration, by uttering the bills, &c. 

The Court repelled this objection, on the ground 
that the correct reading of the libel was, that M'Phun 
having put his name on the mandate, thence followed 
the specific and relevant charge that the accused did 
utter the bills and affidavits, ' by giving in or producing 
'* the same, or causing or procuring the same to be pro- 
' duced in the sequestration, by M'Phun, or by some 
' other person to the prosecutor unknown/ 

6. The fourth charge in the libel of fabricating and 
uttering a false state of affairs could not be sustained, 
as it could not be pretended that a state of affairs en- 
abled pretended creditors to vote and act in a seques- 
tration, which was the essence of the crime charged in 
the major proposition. 

The objection was repelled, and observed, that it 
might arise afterwards upon the evidence. 



AND CIRCUIT COURTS OF JUSTICIARY. 189 

7. It was also objected generally to the use of the £0/27. 

JH0UDO11 

word 'produce' throughout the libel, that it was not Brooks* 
sufficiently specific. wiiKam 

The Court repelled the objection, observing that Thon>aa ' 
' produce ' was a technical word, known to law ; and, dSST" 
moreover, in this particular case it was explained suffi- 1861< 
ciently that the production was made at a meeting of ^Sfjvwod, 
creditors in the sequestration, and the way in which ** 
such production had to be made was provided for in 
the Bankrupt Acts. The Court intimated generally, in 
disposing of the above objections, that they might pro- 
bably arise more properly on the evidence. 

The case went to trial. 

Several points arose for determination in the course 
of the proof. 

W. L. MThtjn stated that he had obtained authority from Thomas 
in prison to insert his name in the mandates, above that of Thomas. 

It was objected that this was not the case put in the 
libel, and that the panels were taken by surprise, and 
were prejudiced by such evidence. 

Lord Ardmillan held that it was due to the witness 
to allow him to explain on what authority he had in- 
serted his name. 

M'Phun also deponed, that on the occasion of his meeting with 
Thomas in prison, he gave him a jotting on the back of an envelope 
of the state of affaiip which was to be made up for Brooks, which he 
(M'Phun) gave to Millar, the agent in the sequestration. 

William Ramsay thereafter spoke to his having written out the 
principal state of affairs from a copy, but could not say where he got 
that copy from. 

On its being proposed to ask him as to the items of 
the copy and principal state, to connect them, it was 
objected that the loss of the copy had not been proved, 
and the question was accordingly disallowed, and wit- 
ness was permitted only to be asked as to the respective 



140 CASES BEFORE THE HIGH COURT 

n^27- amounts total of the copy and principal state of affairs, 
Brooka * and not to compare the individual items. 
Wiiium The evidence having been concluded, 
ThomM ' Miliar and MacLean contended in behalf of the 
SJJSl prisoners in point of law as follows, there being different 
1861 - considerations urged for each panel, and particularly for 
and Fraud brooks, that he was the dupe of Thomas : — 

&c. 1. (Repeating the preliminary objection) it was ar- 
gued — That no separate case of falsehood and fraud 
different from the other charges had been made out, 
and this charge must, as cumulative with them, be struck 
out. 2. For Brooks, it was contended, on the evidence, 
that he was not guilty of fabrication or forgery, in re- 
spect he was not even cognizant of the facts thereof. 
3. It had been proved that the bills were not fabricated 
or forged in the way libelled ; and the bills were other- 
wise essentially mis-described. 4. This applied to de- 
stroy the charge of uttering, which charged the panels 
with uttering ' the said bills/ — the bills which had 
been previously mis-described. The charge of utter- 
ing, to be good in this state of the facts, would require 
to have contained a clause to this effect — ' the said bills 
' having been otherwise forged and fabricated in a man- 
' ner to the prosecutor unknown/ you did utter, &c. 
5. M'Phun's statement about the authority he had got 
in prison was not to be looked at as it was not part of 
the case, and had only been admitted in consideration 
for the credit of the witness. No communication had 
been proved between MThun and either of the prisoners 
subsequent to his insertion of his name on mandates on 
the morning of the meeting. Therefore, the charge of 
uttering had not been made out. But, 6. The utter- 
ing was not perfect in point of law. Thomas had no 
authority to allow MThun to put his name on the 
mandates. That was within the province of a creditor 
alone. Thomas 1 name being on mandates kept them 
within his legal control, and he did not put them be- 
yond his control. It was not in his power to do so 



AND CIRCUIT COURTS OF JUSTICIARY. 141 

without communicating with the creditor giving the ^^ 
mandate. Therefore, any general authority to M'Phun Brooks & 
to act in the sequestration could not entitle him to wuuam 
insert his name in mandates without the creditor's — ^^- 
authority. MThun's acts, unauthorised as was the SoST" 
case in the indictment, could not inculpate the panels. 1861, 
7. The state of affairs, so far as regarded Thomas, was J^ p^ 
withdrawn from the Jury hy Lord Ardmillan, in respect * c * 
the evidence was not of such a nature as to connect him 
with its fabrication or uttering. For Brooks it was 
contended that there was no evidence to show he had 
anything to do with it, or even knew of its existence. 

The panels, it was contended, must be acquitted on 
this indictment, which had not only not been proved, 
but had been disproved in every particular. 

Lord Ardmillan said the defence was original, and 
at the same time so apt, as to be entitled to the greatest 
attention. On the evidence, he thought it would not 
be safe for the Jury to find the charge of forgery proved ; 
and although the evidence upon the charge of fabri- 
cation presented the panels' case in a less favourable 
light, yet they would consider whether sufficient doubt 
did not exist upon it to enable them to come to the 
same conclusion upon it as with regard to the charges 
of forgery. It had been made out in the evidence that 
the forgery and fabrication of the bills was done other- 
wise than was detailed in the indictment. The bills 
were to this extent mis-described, and on this ground he 
suggested the above findings as the legal view of the 
result of the evidence following on the indictment. 
With regard to Thomas, he suggested to the Jury that 
there was no evidence to connect him with the fabrica- 
tion or uttering of the state of affairs. 

But as against both panels, the charge of uttering 
stood in a different position. There the previous mis- 
description of the bills did not vitiate the charge. The 
questions they had to consider were — (1.) Were the 
bill, forged and fabricated ? (2.) Were they uttered ? 



142 CASES BEFORE THE HIGH COURT 

2£a!L (3.) Who uttered them ? As to the first, there was 

Brooke & no doubt the panels had not suggested that the bills 

wiiiiam were genuine or true. Then as to the second, they 

Tbom * g ' were produced in a sequestration, and so uttered. As 

0^7.' *° *^ e teti point, MThun was the hand by which they 

186l< were uttered. Was MThun in so doing acting under 

MdF^Sd, *^e au thority of the panels ? There could be no doubt 

* c - of it. He disregarded the alleged authority given in 

prison, but MThun was arranged to be trustee, and 

empowered to do all he could to procure for himself 

the election. Part of the procedure necessary for this 

end was the production of these bills, &c., which gave 

him the control of the sequestration proceedings, and 

so tended to carry out the plan of the panels, viz., to 

obtain protection for Brooks. He was not prepared to 

withdraw from the consideration of the Jury the charge 

of falsehood and fraud. 

The Jury unanimously found Brooks guilty as libelled, 
with the exception of forgery and fabrication; and 
Thomas guilty as libelled, with the exception of forgery 
and the fourth charge. 

Sentence, four years' penal servitude to each panel. 



AND CIRCUIT COURTS OF JUSTICIARY. 143 



HIGH COURT. 

Jan. 13. 
Present, 1862. 

The Lord Justice-Clerk, 

Lords Ardmillan and Neaves. 

Hex Majesty's Advocate — Sol- Gen. Maitland — 
Maitland-Heriot A. D. 

AGAINST 

Jane M'Pherson or Dempster — John Morison. 
Catherine Stewart — Badenach-Nicolson. 

William Thwaites — Mair. 
Jessie Crooks or Anderson — •/. C. Smith. 

Theft— Separation of Trials — Motion for Delay — Aggrava- 
tion— Previous Conviction — Foreign — Declaration — Habit 
and Repute. — Circumstances in which a motion, 1st, for separa- 
tion of trials ; and, 2d, for delay of the trial of one of the panels 
was refused. 

2. Held— That a certificate or extract of a conviction of the crime of 
theft in an English Court is admissible in proof of an aggravation 
of previous conviction of theft. 

8. Objection to the admission of a panel's declaration, that it did not 
set forth that the charge was explained to the panel, or that she was 
cautioned not to answer unless she chose — repelled. 

4. The character of habite and repute a thief, held not to be established 
by proof that the panel had borne that character for a year. 

Jane MThbrson or Dempster, Catherine Stewart, No.28. 
William Thwaites, and Jessie Crooks or Anderson, M<pbZn 
were indicted and accused— Z%%& 

Others. 



That albeit, by the laws of this and of every other well-governed High Court, 
realm, Theft, especially when committed by a person who is habite ^* 6 2. 
and repute a thief, and who has been previously convicted of theft ; "TheftTAoT 
As also Reset of Theft, are crimes of an heinous nature, and severely 
punishable : Yet true it is and of verity, that you the said Jane 
M'Pherson or Dempster, Catherine Stewart, and William Thwaites, 
*ro> all and each or one or more of you, guilty of the said crime of 



144 CASES BEFORE THE HIGH COURT 

No. 28. theft, aggravated as aforesaid, actor or actors, or art and part; and 
M'Pherson v011 *^ e **"* Jessie Clark or Crooks or Anderson are guilty of the 
or Demp- said crime of theft, aggravated as aforesaid, or of the said crime of 
Others? re8et °^ ^eft, actor » or art and part : In so pas as, on the 26th day 
H* h Court °^ September 1861, or on one or other of the days of that month, or 
Jan. 13. of August immediately preceding, or of October immediately follow- 
1862 ' ing, in or near the house in or near Rose Street, Edinburgh, then and 
Theft, Ac. now or lately occupied by John Anderson, now or lately residing 
there, and by you the said Jessie Clark or Crooks or Anderson, you 
the said Jane M'Pherson or Dempster, Catherine Stewart, William 
Thwaites, and Jessie Clark or Crooks or Anderson, did, all and each 
or one or more of you, wickedly and feloniously, steal and theftuously 
away take from the pockets or person of William Burton Marshall, 
merchant and drysalter in Liverpool, now or lately residing in Church 
Street, Egremont, Birkenhead, in the county of Chester, England, a 
bank or banker's note for twenty pounds sterling, five or thereby 
bank or banker's notes for ten pounds sterling each, and four or 
thereby bank or banker's notes for one pound sterling each, the pro- 
perty or in the lawful possession of the said William Burton Marshall : 
Or otherwise, as regards you the said Jessie Clark or Crooks or An- 
derson, the said bank or banker's notes, or part thereof, having been 
time and place above libelled, stolen by the said Jane M ( Pherson or 
Dempster, Catherine Stewart, and William Thwaites, or by one or 
more of them, or by some other person or persons to the prosecutor 
unknown, you the said Jessie Clark or Crooks or Anderson did, time 
and place above libelled, wickedly and feloniously, reset and receive 
the said bank or banker's notes, or part thereof, you knowing the 
same to have stolen : And you the said Jane M'Pherson or Dempster, 
Catherine Stewart, William Thwaites, and Jessie Clark or Crooks or 
Anderson, are, all and each or one or more of you, habite and repute 
thieves, and have been previously convicted of theft. 

Among the productions libelled was — 

A certificate or extract of a conviction of the crime of theft obtained 
against you, the said William Thwaites, before the General Quarter 
Sessions of the Peace for the county of the burgh and town of Ber- 
wick-upon-Tweed, at Berwick-upon-Tweed, on the 20th day of Octo- 
ber 1854 ; as also a book, titled ' The Sessions Book,' beginning on 
or about 7th April 1854, containing the said conviction, obtained 
against you, the said William Thwaites, as aforesaid, on the said 20th 
day of October 1854, being to be used in evidence against you, the 
said William Thwaites. 

This was the only previous conviction charged against 
Thwaites. 



AND CIRCUIT COURTS OP JUSTICIARY. 145 

When the diet was first called against the panel, on No. 28. 
the 16th December 1861, — M'Pheraon 

Matr, for the panel Thwaites, moved for separation ^^2? 
of his trial from that of the others, on the ground — (1.) 0ther8, 



That he might have the benefit of the women's evi- jLi. n?' 
dence. The offence charged, if committed at all, was 1862, 
committed in the house of one of the other panels, Theft > &c - 
while the panel Thwaites was not present. (2.) That 
the Sessions book libelled was not yet produced, and 
the relevancy of the aggravation raised a very serious 
and new question. 

The Solicitor-General answered — No sufficient cause 
has been shown for separating the trials. The first 
reason is no more than might be pleaded in any case 
where more than one panel is placed at the bar ; and, 
Id, The ' Sessions book ' is in the hands of the witness 
who comes from England to prove the extract, and 
who refuses to give the book out of his custody. 

The Lord Justice-Clerk said, — The Court are of 
opinion that there are no grounds for separation. The 
first reason, that the panel Thwaites wishes to have the 
evidence of the other panels, must, if sound, be avail- 
able in every case where there is more than one panel. 
Some special case must be shown, where the justice of 
the ease requires the separation. As to the other 
ground pleaded, in regard to the € Sessions book/ I 
cannot see how that can be a reason for separating the 
trials. The prisoner's counsel can take every competent 
objection to the admission of the book, when it comes 
to be tendered in evidence. 

The Court refused the motion. 

Mair, for Thwaites, then moved for delay, on the 
ground that the ' Sessions book ' was not produced, and 
he had no opportunity of examining it. 

The Solicitor-General, for the prosecution, answered 
—The book could not be produced, because the authori- 
ties of Berwick-upon-Tweed would not part with it, 

VOL. IV. k 



14(5 OASES &BFORB THE HIGH COURT 

No. 28. but a man was present with the book in his posses- 

M'Pherson sion. 

°8ter e ^d The Lord Justice-Clerk. — We think this a bad 

othera ' ground for moving for delay. No delay would put the 

iin. 13?" panel in a better position than he now is. The officer 

18C2, would go home with his book, and the panel's agent 

Theft, &c. wou | ( j j us j. ^ve to follow him. 

The Court refused the motion for delay. 

Mair then objected to the relevancy of the aggrava- 
tion of previous conviction as against Thwaites, on the 
ground of the conviction being in an English Court. 

The Court repelled the objection as not being an 
objection to the relevancy, reserving its effect as an ob- 
jection to the reception of the evidence of previous con- 
viction, when tendered. 

J. C. Smith, for the panel Anderson, objected to the 
relevancy of the charge of reset, as the indictment did 
not state from whom the property was stolen. 

The Court repelled the objection, on the ground that 
' said bank notes ' meant the notes in question, ' the 
' property, or in the lawful possession, of W. B. Mar- 
' shall/ 

The Court, on the motion of the Solicitor-General, 
deserted the diet against the panels, pro loco et tempore. 

The diet was this day called against the panels, on 
an indictment exactly the same as the former. 
The panels pleaded not guilty. 
As regarded the proof of the English conviction, — 

Robert Home deponed — I am Clerk of the Peace of Berwick-upon- 
Tweed. [Shown certificate libelled.] That certificate is signed by me. 
It is a certificate of a sentence of the Quarter Sessions of the borough 
of Berwick-upon-Tweed, of which court I keep the records, and act as 
the clerk, by virtue of my office, as Clerk of the Peace. The sentence of 
which this is a certificate, is entered in the Records. It is a true 
certificate. I have the Record Book of the Court with me. This cer- 
tificate is in the ordinary form in which I certify sentences, and it 
w*uld, in England, be received as evidence of the sentence, with only 
the additional evidence of a witness to prove its application to some 



AND CIRCUIT COURTS OP JUSTICIARY. 147 

person. I am ready to point out in the Record Book of the Court, if No. 28. 
required, the entry of the sentence to which my certificate applies. I M<T f "^ 
was applied to by the Procurator-fiscal to produce the book, but it is or Demp- 
my duty, as an officer of Court, to keep this book in my own custody, ***' "^ 

and not to part with it on any account. It was brought this morning — 

fan Berwick by my clerk (No. 29). H j g a n?l3 rt * 

Cross-examined for the panel Thwaites. — The Judge who pronounced ] 862 * 
the sentence was the Recorder of the Town of Berwick. Theft, &c 

The Solicitor-General, for the prosecution, now 
proposed to prove the application of the sentence of the 
Quarter Sessions of Berwick to the panel Thwaites, and 
then to put the certificate in evidence. 

Mar, for Thwaites, objected to its admissibility. The 
only authority in favour of its admission is the case of 
Kenneth Macrae,T?erth, April 1837, Bells Notes to Hume, 
p. 33, tried by Lord Moncreiff. It would be unsafe to ad- 
mit such a certificate, as we are not acquainted with the 
law of England, which differs from ours in many re- 
spects, and in this case differs from the law of Scotland, 
in so far as in that country an accessory after the fact 
is held guilty of theft, while in Scotland he would only 
be a resetter, Hume, ii. p. 56. 

The Solicitor-General, for the prosecution, answered 
—There is here no question of jurisdiction. In Alison's 
' Principles/ p. 304, we see that the practice of charg- 
ing previous conviction was not very well settled till 
1824 — case oiJohn or Alexander Campbell, High Court, 
June 3, 1822, P. Shaw's Justiciary Cases, p. 66. The 
proof of previous conviction, as an aggravation in cases 
of passing base coin is analogous, 24 th and 25th Vict. 
c 99, sect. 37. 

Lord Ardmillan. — This is a very important and 
difficult question, and almost a novel one, and it well 
deserves the attention that has been bestowed on it ; 
but, after the best consideration that I have been able 
to give it, I am of opinion that the objection is not well- 
founded. 

We are here trying a case of theft, aggravated by 



1862. 



Theft, &c. 



148 CASES BEFORE THE HIGH COURT 

N jkne' P rev * ous conviction of theft, and we are trying it in the 
M'Phereon High Court of Justiciary, one of the Queen's Courts, 

orDerap- . 

step and administering the law in the Queen's name. The public 
* ra * prosecutor is Her Majesty's Advocate for Her Majesty's 

Jan. 13. " interest, and the accused is put to the bar to answer for 
- a crime against the laws of this country. Now theft is 
a crime against the public law of the United Kingdom. 
It is a crime against the law of England as well as that 
of Scotland, and the Queen's Courts of both countries 
have jurisdiction to try persons accused of that crime. 
The aggravation of previous conviction, particularly, as 
in this case, the aggravation of the crime of theft by 
previous conviction of theft, is well known to our law. 
In considering a previous conviction as aggravating a 
present offence, there is no attempt to punish the per- 
son a second time. The aggravation is, in some sort, a 
quality of the actor reflected on the crime which we 
are to try, and this quality of the actor may be com- 
petently instructed by proof of his conviction of the 
crime of theft before any of the Queen's Courts com- 
petent to try that crime. The present case is not the 
same as that with which, in the argument of the panel's 
counsel, he has sought to identify it, viz., that of a con- 
viction before a really foreign tribunal — French, Bel- 
gian, or German. This is not a conviction before that 
species of foreign tribunal, because here we have a con- 
viction of theft before one of the Courts of the Sove- 
reign of this realm ; and we, sitting in another Court 
of the Queen, are trying a person prosecuted in the 
Queen's name for a crime of which the previous convic- 
tion is an appropriate and legitimate aggravation. If 
there was a common quality in the offence, which made 
it cognisable in all the Queen's Courts — if theft means 
the same thing in England as in Scotland — I can see 
no sound objection to proving a conviction in one of 
the Queen's Courts before another of these Courts, in 
order to instruct that quality affecting the actor in the 
crime we are trying, in consequence of which his crime 



AND CIRCUIT COURTS OP JUSTICIARY. 149 

is of an aggravated character. And, in this view, I am No. 28. 
confirmed by the terms of the Statute 13th Geo. III., m'PwLii 
c. 31, sect. 4/ already referred to, which has reference ^r t^d 
to the case of a person who has stolen certain things in 0theni - 
one part of the United Kingdom, and has them in his High Com*, 
possession in another part — {reads section). Now, I i862. 
read this section as a recognition of two matters of Theft » Ac- 
great importance — 1st, Of the common character or 
guilt of the crime of theft in both parts of the United 
Kingdom ; and, 2rf, Of the appropriateness of the words 
'steal' or ' stolen' as applicable to the same act in both 
parts of the Kingdom. 

Then we have the analogy of the case of uttering 
base coin, which is a crime both in England and in 
Scotland, and in regard to which it cannot be disputed, 
that a person once convicted is, if he is again convicted, 
guilty of a second offence, of which the previous con- 
viction is the aggravation. No doubt, these offences 
against the coin are created by express statute, and thus 
the illustration may seem stronger in favour of the pro- 



1 Statute 13th Geo. III. c. 31, sect. 4. — * And whereas it frequently 
1 happens in both parts of the United Kingdom, that persons having 
' stolen, or otherwise feloniously taken away, money, cattle, goods, or 
' other effects, carry the same into the other part of the United King- 
4 dom,and there have the said money, cattle, goods, or other effects, in 
* their possession or custody, and doubts have been entertained whe- 
4 ther they could be indicted or tried in that part of the United King- 
' dom, as the original offence was not there committed, be it therefore 
( enacted, by the authority aforesaid, — That from and after the pass- 
4 fog of this Act, if any person or persons, having stolen or otherwise 
4 feloniously taken money, cattle, goods, or other effects, in either part 
1 of the United Kingdom, shall afterwards have the same money, 
4 cattle, goods, or other effects, or any part thereof, in his, her, or 
( their possession or custody, in the other part of the United Kingdom, 
' it shall and may be lawful to indict, try, and punish such person or 
4 persons, for theft or larceny, in that part of the United Kingdom 
4 where he, she, or they shall so have such money, cattle, goods, or 
' other effects, in his, her, or their possession or custody, as if the said 
' money, cattle, goods, or other effects, had been stolen in that part of 
' the United Kingdom/ 



1862. 



Theft, &c. 



150 CASES BEFORE THE HIGH COURT 

N jine' secu * or than the present case. But the principle is the 
M'Pheraon same in both cases. The essential qualities of the crime 

Btarand are the same in both countries, and the crime is an 
* *"* - offence against the law of both countries. We cannot 

Jan ; 13. try an offence committed in England ; but inquiry into 
previous character ought not to be stopped because the 
previous conviction was in England. So, in the case of 
malice evinced in England, that malice may be instruc- 
ted by proof of conduct in England in a trial for murder 
in Scotland. So also, the circumstances and conduct in 
England of a person coming to Scotland, and charged 
here with fraudulent bankruptcy, may be proved in the 
Scottish Court. I also think that, in a trial here for 
the crime of reset in Scotland for goods stolen in Eng- 
land, the theft in England could be proved here to 
support the charge of reset. 

On all these grounds, though fully sensible of the 
delicacy and difficulty of the question, yet having the 
authority of Lord MoncreifFs decision on Circuit, I am 
for repelling the objection. 

Lord Neaves. — After every consideration I have 
been able to give to the matter, I have come to the 
conclusion that the evidence is not admissible, and that 
the objection ought to be sustained. There can be no 
doubt that if in any other foreign country the party had 
been sentenced for this offence, this Court would not 
have given heed to this previous conviction, and I am 
unable to see any ground for a different rule with re- 
gard to England. It cannot admit of doubt that an 
English sentence of any kind is not probatio probata in 
this country. It was admitted by the Solicitor-General 
that it would not be competent in this case to enquire 
whether, in regard to this previous conviction, the man 
had been justly or fairly tried, or whether he was not 
totally innocent. It might be true that, so far from 
being fairly tried, he was lawlessly oppressed ; but yet 
we are not to enquire into that, and we are asked to 
take the fact of his being so convicted in a foreign 



and oiacirrr courts op justiciary. 151 

country, as equally an aggravation of the offence N j;^f- 
with which he is now charged, as if he had been con- ^^J^ 11 
victed in this country, where the previous conviction ■*« » nd 

being recorded, would have been probatio probata. Now, — 

I doubt whether the sentence of a foreign Court is a f^. u. 
conviction in the sense of the law of Scotland — where 1862 ' 
we know only that there was a sentence pronounced, Theft ' kc ' 
which might or might not be a just sentence. I take 
also this separate and additional ground of objection to 
this evidence, that, although there may be a general re- 
semblance between theft and what is called larceny in 
England, I cannot overlook the fact that very different 
views of theft are taken in different countries. What is 
regarded as theft in one country might not be considered 
theft in another. There are several things that might 
be theft in Scotland that are not theft in England, and 
trice versa; and there are many nice questions as to what '" 

is theft and what is breach of trust ; so that it is matter 
of uncertainty whether the crimes in the two countries 
are in substance the same. 

Lord Justice Clerk. — I feel this to be a question at- 
tended with considerable difficulty, and I have so felt it 
from the first time that I heard the objection stated. 
My difficulty is increased by the difference of opinion 
that exists between your Lordships, so that the 
ca«e comes to be decided by my vote. The charge 
against the panel is one of theft, committed in Rose 
Street in Edinburgh, and he is also said to have been 
previously convicted of theft — in other words, to be a 
convicted thief, and there is no question that the act of 
theft was committed within our jurisdiction. This is 
not a question of jurisdiction in any sense of the word, 
but only whether, on account of a conviction obtained 
against him in another part of the United Kingdom, the 
panel is rightly described as being in the position of a 
convicted thief, when he committed the act of theft libel- 
fed m this indictment. In support of the aggravation of 
previous conviction a certificate is produced, which bears, 



152 CASES BEFORE THE HIGH COURT 

N jJ!?' ***** ^Ui* 111 Thwaites was indicted (at the General 

M'Pherson Quarter Sessions of the Peace for the Borough of 

Bter Md Berwick-upon-Tweed) before the Recorder of the burgh, 

0thers ' for that he, on 7th September, 1854, one gold watch, 

jao. 13. etc., ' feloniously did steal, take, and carry away,' and 

1862, that he was convicted of the offence charged. Now, it 

9 is not disputed that the Court of General Quarter 

Sessions was a competent Court, nor that the Recorder 

was a competent Judge, to try this offence, nor is it 

alleged that he exceeded his jurisdiction. If this were 

a sentence of a foreign Court, in the ordinary sense of 

that term, there can be no doubt what our deliverance 

would be. Such a conviction cannot have effect here, 

for this, among other reasons, that it is not evidence 

of any offence against the public law of the sovereign 

power of this country. 

But it is very different when the conviction is in one 
of the Courts of the United Kingdom — (1.) Because all 
criminal, as well as all civil, jurisdiction flows from one 
source, that is, from the Sovereign — we all derive our 
jurisdiction from the Queen; (2.) Because the sen- 
tences of all our Criminal Courts are put into execu- 
tion by the same authority, viz., that of the Queen; 
(3.) Because the prosecutor here is the Queen herself, 
acting through her law-officers, and she comes to repre- 
sent to us, that this person stands in the position of a 
convicted thief; and it would be an anomalous result if, 
when the public prosecutor, representing the Queen, 
makes a charge of this kind, he should not be allowed to 
libel a previous conviction for the same offence in a 
competent Court deriving jurisdiction from the same 
authority. I could easily understand a case in which 
such previous conviction would not be admissible, if the 
crime was not of the same quality in the two countries; 
but I do not think there is the least reason for suppos- 
ing, that there exists any essential difference between 
what constitutes theft in England and Scotland re- 
spectively ; on the contrary, I think that the Act 13th 



AXD CIRCUIT COURTS OF JUSTICIARY. 153 

Geo. III. clearly shows that theft in its definition is the No. 28. 
same in both countries. That being the case, I come M'Phmon 
to the conclusion, though not without hesitation, that »Lr Ind " 
we are bound to receive the evidence of this conviction 0thera » 
as an aggravation of the offence charged against the ^nfis!*" 
pursuer. 1862 - 

The objection was therefore repelled. Theft ' * 0, 

William Whinna, (shown certificate of conviction before the 
Berwick Court,) — I am Governor of the Jail of Berwick. The convic- 
tion applies to the panel. I was present at the trial, and saw the 
panel convicted and sentenced. 

Cross-examined for the panel Thwaites. — Are you aware that the 
panel was convicted as an accessary after the fact ? 

The question was objected to by the Crown, and was 
disallowed. 

On proof being led that Thwaites was habit and re- 
pute a thief, it appeared that he had been out of prison 
for only a year. 

The Court held that this was not sufficient time to 
establish the character of habit and repute a thief. 

J. C. Smith, for Anderson, objected that her declaration 
could not be read, because it did not state that the 
charge was explained to her, and that she was cautioned 
that she was not bound to answer. 

The Court, on the ground that a statement of what 
the magistrate did was not essential to the declaration, 
repelled the objection. 

The Jury unanimously found all the panels guilty of 
theft as libelled, art and part, with the exception of the 
aggravation of habit and repute against the panel 
Thwaites, which they found not proven. 

Sentence — Dempster, Stewart, and Anderson, each 
six years' penal servitude, Thwaites eight years 1 penal 
servitude. 



154 CASES BKFORE THE HIGH COURT 



Present, 
Jan. 20. The Lord Justice-General, 

1862. 

The Lord Justice-Clerk, 

Lords Ivory, Cowan, Ardmillan, and Neaves. 

John Macdonald, Suspender — Maitland-Heriot A.D. — A. Mon- 
crieffA.D. 

AGAINST 

John Young, Respondent— (7. Young — Maclean. 

Suspension — Jurisdiction — Statute 23d and 24th Vict. c. 151 — 
Mines, Regulation and Inspection of — Process, Civil or Cri- 
minal. — A complaint by a Procurator-fiscal to recover statutory 
penalties for violation by the owner of a coal-pit of one of the gene- 
ral rules directed by the Mines Regulation and Inspection Act, to 
be observed in coal and ironstone-mines, is a civil proceeding ; and 
therefore the Justiciary Court has no jurisdiction to entertain a sus- 
pension of a judgment of a Sheriff pronounced in such a complaint. 

Question, Whether a complaint to recover penalties for violation of the 
special rules established under the Act be civil or criminal? 

Mscdonaid The proceedings in this case originated in a complaint 

«. Young. ^Oth September 1861) at the instance of the suspender, 

jln. 20!*" Procurator-fiscal at Airdrie, against the respondent, a 

1862 ' coal master, and one of the c owners ' of the Bargeddie 

suspension, coa i_ p i t i n Lanarkshire, to the Sheriff of Lanarkshire or 

his substitute at Airdrie, under the 23d and 24th Vict. 

c. 151, entituled ' An Act for the Regulation and In- 

€ spection of Coal-Mines.' The complaint narrated, that, 

by section 10 of the Act, it was provided that the 

following general rule should be observed in every 

colliery, coal-mine, and ironstone-mine, by the owner or 

agent thereof, viz. : — 

4 1. An adequate amount of ventilation shall be constantly pro- 
4 duced in all coal-mines, or collieries, and ironstone-mines, to dilute 
' and render harmless noxious gases, to such an extent that the work- 
1 ing places of the pit's levels, and workings of every such colliery 



AND CIRCUIT COURTS OP JUSTICIARY. 1 55 

4 and mine, and the travelling roads to and from such working places, Wo. 29. 
4 shall, under ordinary circumstances, be in a fit state for working, 9# Young. 
4 and passing therein.' High Court. 

Jan. 20. 

And by section 22 of said Act it was, inter alia, 186a - 
enacted, that — 

4 If any coal-mine, colliery, or ironstone-mine be worked, and 
1 through the default of the owner or agent thereof, special rules have 
4 not been established for the same, according to the provisions of this 
4 Act, or the general rules or the special rules for such coal-mine, 
4 colliery, or ironstone- mine, by this Act required to be established, 
1 have not been hung up or affixed, or have not, after obliteration or 
4 destruction, been renewed or restored, as required by this Act, or 
4 any of such general rules or special rules, provisions of which ought 
4 to be observed by the owner and principal agent or viewer of such 
1 coal-mine, colliery, or ironstone-mine, be neglected or wilfully vio- 
4 lated by any such owner, agent, or viewer, such person shall be liable 
4 to a penalty of not exceeding £20.' 

That by section 25 of said Act it was enacted, that 

4 All penalties imposed by this Act may be recovered in a summary 
4 manner before two Justices of the Peace, or in Scotland before the 
1 Sheriff having jurisdiction in that county or place where the offence 
4 is committed, in the manner prescribed by the law in that behalf 
4 the information to be laid or action raised within three months after 
4 the commission of the offence ; and it shall be lawful for one of Her 
4 Majesty's principal Secretaries of State to direct that any penalty 
1 imposed for neglecting to send or cause to be sent, notice of any ac- 
4 cident as required by this Act, or for any offence against this Act 
4 which may have occasioned loss of life or personal injury, shall be 
1 paid to or among any of the family or relations of any person or 
4 persons whose death may have been occasioned by such accident or 
4 offence, and not being a person or persons who occasioned or contri- 
4 bated to occasion the accident ; or to any person or persons, not 
4 being the offender or offenders, who may have sustained personal in- 
4 jury occasioned by such accident or offence, as he may think fit ; 
4 and, save as aforesaid, all penalties imposed by this Act shall, when 
' recovered, be paid into the receipt of Her Majesty's Exchequer, in 
1 such manner as the Commissioners of Her Majesty's Treasury may 
4 direct, and shall be carried to, and form part of, the Consolidated 
' Fund of the United Kingdom/ 

It was stated in the complaint — That John Young, 
senior, one of the owners under and as defined by the 



156 CASES BEFORE THE HIGH COURT 

M^d'oSid ^^ ^ ct > °^ *^ e Bargeddie coal-pit or mine, had, as one 
9. Young, of the owners aforesaid, neglected or wilfully violated 
High court, the said first general rule provided by the 10th section 
i»62.' of the said Act, the provisions of which ought to have 
Suspension, been observed by him, and had thereby incurred the 
penalty of not exceeding twenty pounds, provided by 
the said 2 2d section of said Act : ' In so far as, on 22d 
June 1861, or about that time, the said Bargeddie coal- 
pit or mine being then worked, the said John Young, 
senior, as one of the owners aforesaid, did neglect or 
wilfully fail and omit to constantly produce an adequate 
amount of ventilation in the main coal- workings there- 
of, and in particular, in or near the working-place there 
of David Kelly, a collier, to dilute and render harmless 
noxious gases therein, to such an extent that the work- 
ing-places of said coal-pit or mine, and the travelling 
roads to and from said working-places, would, under 
ordinary circumstances, be in a fit state for working 
and passing therein, and in consequence a quantity of 
fire-damp or other noxious gases accumulated in said 
main workings ; and in particular, in or near the said 
working-place there of the said David Kelly, and in the 
travelling roads to and from said working-place, and 
said fire-damp or other noxious gases, in or near the 
said working- place of the said David Kelly, were not 
diluted and rendered harmless, and the same exploded 
in consequence of being ignited by the unprotected 
lighted lamps of the said David Kelly, and William Gray, 
now deceased, then assistant fireman in said coal-pit or 
mine, which lamps were then at or near the entrance 
to the said David Kelly's said working-place, or were 
ignited in some other way to the complainer unknown ; 
and in consequence thereof, the said David Kelly and 
the said William Gray were severely burned on their 
bodies, and the said William Gray died from the effects 
of said injury on the 28th June 1861/ 

The complaint prayed the Judge c to grant warrant 
€ to cite the said John Young, senior, to appear before 



AND CIRCUIT COURTS OF JUSTICIARY. 157 

' you to answer to the foregoing complaint ; and upon jJJj^Jid 
' his appearance, and admitting the facts before stated, «. Young. 
' or on his failure to appear, or upon proof of the said High Court. 
' offence, to decern and adjudge him to pay to the com- 1862. 
' plainer, to be accounted for by him to the Queen's Suspenmon. 
' and Lord Treasurer's Remembrancer of the Court of 
1 Exchequer in Scotland, such sum, not exceeding £20, 
1 as your Lordship may fix as the penalty incurred by 
' the said John Young, senior, as above libelled/ 

The case came before the Sheriff-substitute, who pro- 
nounced an interlocutor granting warrant for service 
thereof and of his deliverance on the respondent, and to 
summon him to appear before him at Airdrie, with war- 
rant to cite witnesses. 

The respondent appeared, but objected to the rele- 
vancy of the complaint, in respect — (1 .) that the case was 
incompetently brought as a criminal complaint at the 
instance of the procurator-fiscal as such ; and, (2.) that it 
was incompetent, in respect of its departure from the 
forms prescribed by law in the Sheriff-Courts in Scotland. 

The Sheriff-substitute having heard parties, repelled 
these objections, and an appeal was taken by the re- 
spondent to the Sheriff. A proof was thereafter led be- 
fore the Sheriff-substitute, and the parties having been 
heard thereon, the Sheriff-substitute pronounced the 
following interlocutor : — 

' IBtk October 1861.— The Sheriff-substitute having 
' heard the prosecutor in support of the complaint, and 
' the agent for the defender in defence, in accordance 
' with the evidence adduced, finds the libel proved, and 
9 therefore convicts John Young, senior, complained 
' upon, of the offence libelled as having occurred on the 
' 22d June last, and therefore decerns and ordains the 
' said John Young, senior, to make payment to the said 
' complainer of the sum of £10 sterling, being the 
' penalty hereby modified, and incurred by the said 
' John Young senior's neglect or wilful violation as libel- 
1 led, and decerns.' 



168 OASES BEFORE THE HIGH COURT 

Mwd^iid ^ e TeB V on & eni appealed to the Sheriff against this 

v. Young, interlocutor also. Those appeals, having come before 

• ^n^o*' ^ e Sheriff, the suspender maintained that the appeals 

1 862» were incompetent, as the judgments of the Sheriff- sub- 

SuapenMon. stitute were final. 

The Sheriff, 12th November 1861, found the appeals 
competent, and appointed the parties to be heard on 
the merits. The complainer thereupon presented a note 
of suspension to the High Court of Justiciary against 
the interlocutor of the Sheriff, and pleaded, that ' on a 
' sound construction of the Act 23d and 24th Vict. 
s c. 151, the judgment of the Sheriff-substitute was not 
' subject to review ; and that, the interlocutor of the 
' Sheriff was illegal, and ought to be set aside.' 

At the calling of the case the respondent took objec- 
tion to the competency of the suspension as a mode of 
review of the case in its present stage, citing Hume, 
vol. ii. pp. 509, 613 ; Erskine's Institutes, 4. tit. 2. sect. 
20, and 4. tit. 3, sect. 8, to the effect that the advoca- 
tion was the proper process of review of an interlocu- 
tory judgment such as that suspended, and that suspen- 
sion was only competent as a mode of staying a final 
sentence condemnatory. The Court deferred considera- 
tion of the point, and directed argument on the merits 
of the suspension. 

The suspender argued — That the appeal to the Sheriff 
was incompetent on two grounds, (1.) As absolutely ex- 
cluded by statute. (2.) Because the proceedings before 
the Sheriff-substitute were criminal. He referred to 
section 7th of the Act (interpretation clause), in which 
it is declared that € the word Sheriff shall include Sheriff- 
c substitute/ so that the complaint might have been 
brought before the Sheriff originally. Further, in sec- 
tion 25 of the Act quoted above, it was provided that 
the penalties imposed should be recovered in the manner 
provided by ' the law in that behalf.' Now ' law in 
€ that behalf/ in the section here referred to, was, it was 
maintained, the provision in the 5th and 6th Vict. c. 99. 



AND CIRCUIT COUBTS OF JUSTICIARY. 159 

That Act, 5th and 6th Vict. c. 99, was referred to in ^j^w 
the preamble of the Act of 23d and 24th Vict., and the «. Young. 
6th section of the latter Act provided that the ' fore- Hi 8 hC ^ rt - 
' going provisions' of the Act should be construed with 1862. 
the Act of 5th and 6th Vict, as one Act. Now section Suspension. 
17 of 5th and 6th Vict., declares that the prosecution 
for offences against its provisions may be laid before two 
Justices or the Sheriff; and (sect. 21) that if the prose- 
cution be before the Justices, ' either party may appeal 
' to the Quarter Sessions, and the judgment of the Quar- 
' ter Sessions or Sheriff is to be final, and not open 
' to review in any court whatever.' Under that Act 
there was no review by the Sheriff. If, therefore, the 
two Acts were to be read as one, it was clear that re- 
view was excluded. Further, the summary way in 
which the penalties were recoverable, indicated the in- 
tention of the Legislature that the proceedings should 
he rapid, and were inconsistent with allowing review. 

But the review of the Sheriff was excluded by reason 
of the criminal nature of the charge. It was called an 
offence. The penalties imposed were in vindictam pub~ 
licam — in modum pcence. The Act 5th and 6 th Vict. c. 99, 
sec. 18, provided imprisonment for non-payment of these. 
The Court of Session had recently held, in the case of 
Bruce v. Linton, Dec. 13, 1861, 24 D. B. M. 184, and 
other cases, which were prosecutions for similar penalties, 
that they were of a criminal nature, and excluded the 
person complained of as a witness in the case. A list of 
witnesses was not necessary in every criminal complaint. 
And although here the Sheriff-substitute had examined 
the accused, he did so in face of the complainer's opposi- 
tion ; and in doing so, committed a mistake. 

Young and Maclean, for the respondent, answered — 
That 'the law in that behalf' in the 25th section of the 
23d and 24th Vict. c. 151, just meant the common form 
of legal process in the Justice of Peace and Sheriff-Courts. 
There was no reference to 5th and 6th Vict. c. 99. In- 
deed such reference was excluded. The Act 5th and 



160 GASES BEFORE THE HIGH COURT 

M^Ldon^id ^ ^ C * # ma ^ e provision solely for the employment of 
v^Youn^ persons in mines, and regulations thereanent. The first 
H ^kCourt. f our sections of the present Act did the same. Then occur- 
1862. red the 5th section which was in these words : The fore* 
Suspension, going provisions of this Act shall extend to all mines in 
Great Britain, and shall be construed with the said Act of 
5th and 6th Vict. c. 99 as one Act. The second part of the 
present Act was headed ' Provisions for Inspection and 
' Regulation of Coal-mines and Ironstone-mines.' The 
present Act was thus divided into two parts, the first 
relating to the same subject-matter as the Act of 5th and 
6th Vict., and the second to matters of a totally different 
kind. The first part of the Act was incorporated with 
the former Act. No allusion was made to the former 
Act in the second part. There were no provisions for 
the regulation and inspection of mines in 5th and 6th 
Vict. c. 99. No general rules were enacted by it. 
There had been two Statutes prior to this one for the 
regulation and inspection of mines, viz., 13th and 14th 
Vict. c. 100 ; 18th and 19th Vict. c. 108, both of which 
had been repealed, which had been exclusively con- 
cerned with the matters treated of in the second part of 
the present Act, and both of which, without containing 
any provisions similar to those of 5th and 6th Vict. c. 
99, had a similar clause to that in sect. 25th, viz., € the 
' law in that behalf. 1 It could not be said that they 
referred by that form of expression to the provisions of 
an Act, with the subject matter of which they had 
nothing in common. 

Besides, when one Act was to be incorporated with 
another in its working provisions, it was done as the 
Home-Drummond Act, 9th Geo. IV. c. 58, was incorpo- 
rated by and with the Forbes-Mackenzie Act, 16th and 
17th Vict. c. 67, section 16. 

The only questions which remained, then, were, Was 
the case civil or criminal ? and, Was the suspension a 
competent form of process ? The argument on the latter 
point was held as repeated. For determining the former 



AND CIRCUIT COURTS OF JUSTICIARY. 161 

(supposing the Act 5th and 6th Vict. c. 99, excluded,) No. 29. 
the Act 23rd and 24th Vict. c. 151, must be looked to. ^S? 
If the case was civil, the Justiciary Court could not in- High court, 
terfere. It was clearly a civil process, for — (1.) The con- ^62.°' 
elusion of the complaint was a craving for decerniture suspension! 
of sums of money. (2.) Decree following thereon would 
only be enforcible in the ordinary way, by extracting, 
charging, poinding, etc. (3.) No term could be set to 
the imprisonment which was necessary in criminal 
matters. (4.) The terms of the 22d section showed the 
civil character of this matter. The sanction for non- 
payment was only an additional penalty of so much per 
day. The distinction taken between the offences by 
owners, and agents, and viewers, and others engaged in 
more immediate management of pits, was very import- 
ant. In addition to the part of the section quoted from 
the complaint there occurs the following : ' And also in 
1 case the default or neglect be not remedied with all 
' reasonable dispatch after notice in writing, given by an 
' inspector to the owner or agent of such coal-mine, 

I colliery, or ironstone-mine, to a further penalty of £1 
' for every day during which the offence continues after 
' such notice ;' and the section goes on to enact that any 
person, other than the above, who neglects or wilfully 
violates any of the special rules, established under sect. 

II of the Act, for the conduct and guidance of the per- 
sons acting in the management of mines, and of per- 
sons employed in or* about the same, shall be liable on 
summary conviction before two Justices, or in Scotland 
before the Sheriff, to a penalty not exceeding £2, or to be 
imprisoned with or without hard labour in the common 
jail or house of correction for any period not exceeding 
three calendar months. (5.) No personal criminality 
was involved in the neglect or violation of general rules 
or of the provisions of the 22d section. It was a con- 
structive offence. (6.) The fact that death occurred 
from violation of rule was no element in the case. The 

vol. rv. L 



1 62 CASES BEFORE THE HIGH COURT 

No. 29. case would have been equally relevant without it. The 
*. Young, object of introducing the statement was for the aportion- 
1 jfn C 20 rt ' ment °f *^ e penalties provided for in section 25. (7.) 
1802- The terms used in section 25 excluded the idea of this 
Suspension, being a criminal suit. It was a British Statute. The 
word 'information' was applicable to English process. 
But a criminal prosecution was never called an action in 
Scotland. (8.) The respondent bad been allowed by the 
Sheriff-substitute to be a witness for himself. (9.) The 
proceedings under this Act were analogous to those 
under the Home-Drummond and Forbes-Mackenzie and 
other similar Acts, which were civil processes only cog- 
nizable by the Court of Session — Phillips v. Steel, Jan. 
12, 1847, 9 D. B. M. 319. (10.) There was no per- 
emptory diet fixed. The accused need not be within the 
jurisdiction of Sheriff. The test of jurisdiction was the 
locus of the mine. 

Lord Justice-Clerk. — This bill of suspension com- 
plains of an interlocutor by the Sheriff of Lanark, pro- 
nounced on appeal taken against a judgment of his 
Substitute. The import and effect of the judgment 
complained of is to find that appeal competent. The 
question raised as to the competency of the suspension, 
is certainly worthy of mature consideration, and involves 
a point of much delicacy. It has been contended on the 
one side that this was a criminal proceeding before the 
Sheriff- substitute, and that there could be no appeal to 
the Sheriff against the Substitute's sentence awarding a 
penalty ; on the other hand, it was contended that the pro- 
cess before the Sheriff-substitute was entirely a civil 
process ; and that if steps taken by the Sheriff-substitute 
were more adapted to criminal than civil procedure, 
that only proves that the Sheriff-substitute went wrong ; 
and it was further contended, as a corollary, that as 
this was a civil action, the appeal to the Sheriff was 
competent, and that we have no jurisdiction which en- 
titles us to interfere. 
The question we require to solve is, whether, under 



AMD CIRCUIT COURTS OF JUSTICIARY. 163 

the Statute 23d and 24th Vict. c. 151. this process is N0.29. 

. . Macdonald 

civil or criminal. The Statute recites two previous v. Young. 



Acts, 5th and 6 th Vict. c. 99, prohibiting the employ- High Court, 
ment of women and girls in mines, and regulating the 1862. ' 
employment of boys, &c., and 18th and 19th Vict., suspension, 
c 108, an Act to amend the law for the inspection of 
coal-mines. It is apparent from the titles of these 
Acts that they refer to different subject-matters. This 
Act narrates that it is expedient that the provisions 
of these Acts be amended, and that the provisions for 
inspection, then applicable to coal-mines only, should 
be extended to certain mines of ironstone of the coal- 
measures. The enacting clauses of the Act come under 
two heads— the first is called ' provisions applicable to 
' all mines ;' there are only five clauses in that part of 
the Act; the first four apply to the employment of 
boys, women, and girls, in mines. The fifth section 
enacts that these provisions should extend to all mines 
in great Britain, and should be construed with the Act 
of 5th and 6th Vict, as one Act. This provision relates 
only to the four previous sections. The subject-matter 
of the second part of the Act is the same as of the Act 
18th and 19th Vict., and that part of the Act consists 
of provisions for inspection and regulation of coal-mines 
and ironstone-mines. The first section repeals the 18th 
and 19th Vict., and proceeds to substitute improved 
regulations for the same purpose. Now, the clause 
we are called on to consider, is in this second part of 
the Act. We are not entitled to read any part of the 
provisions of the previous Act as applicable to the 
recovery of penalties under this Act. The 10th sec- 
tion gives fifteen general rules which are to be observed 
in all coal and ironstone mines by their owners and 
agents. These regulations all impose a duty and re- 
sponsibility on the owner and agent of a mine. The 
second section makes provisions as to the special rules 
which are to be established in particular mines. These 
we to be adjusted by the Secretary of State and the 



164 CASES BEFORE THE HIGH COURT 

No. 29. owner of the mine, and the distinction between the 
c.^o^g. general and the special rules must be kept in mind. 
High Court. The 22d section relates to penalties for offences against 
*as2." the Act. The first part of the section provides, that if, 
Suspension, through the fault of the owner or agent, special rules 
have not been established, or the general rules or special 
rules have not been hung up or affixed, or have not 
after obliteration been restored, or if any of these rules 
which ought to be observed by the owner, agent, or 
viewer, be neglected by either, such person shall be 
liable to a penalty, and if the default or neglect be not 
remedied, after notice in writing by the inspector, there 
is a penalty for each day the offence continues. It is 
difficult to read these provisions without being reminded 
of the penalties under the Eailways Acts, in which, as 
here, there is a penalty for every act of negligence, 
however short its duration, and also a penalty for con- 
tinuing the neglect. These we have construed to be 
civil penalties, and prima facie the penalty provided in 
this case seems also to be a debt recoverable by civil 
action. But light is thrown on the question by what 
follows in the 22d section. The second part of the 
section applies to everybody employed in a coal or 
ironstone -mine, except the owner, agent or viewer, and 
what is said about them is, that if they neglect or wil- 
fully violate any of the special rules, they ' shall for 
' every such offence be liable upon a summary convic- 
' tion for the same, before two Justices of the Peace, or 
1 in Scotland before the Sheriff having jurisdiction in 
€ the county or place where the offence is committed, 
' to a penalty not exceeding £2, or to be imprisoned ' 
for any period not exceeding three months. The party 
is to be summarily tried, and, if conviction follow, sub- 
jected to a penalty, or imprisonment in place of a 
penalty. That is as like a punishment following on an 
offence as anything can be. The first part of the 
section imposes a civil forfeiture, the second a punish- 
ment as for a criminal offence. 



AND CIRCUIT COURTS OF JUSTICIARY. 165 

The 25th section provides for the manner in which w No - M - 

, it 11 Macdonald 

penalties are to be recovered. It may perhaps be «. Young, 
doubted whether the 25th Section applies to cases under High Court. 
the second part of the 22d section. The words seem i862. ' 



inapplicable to criminal complaint or conviction. My Suspension, 
impression is, that they do not apply to convictions 
under the second part of 22d section ; reference to the 
5th and 6th Vict, is excluded. I understand them as 
meaning that the ordinary common law procedure is 
to be followed. What kind of process, then, have we 
here ? There is nothing of the nature of a criminal 
complaint except the name. The Sheriff-substitute 
seems to have been misled into the belief that this was 
of the nature of a criminal proceeding ; because he finds 
the libel proved, and convicts Young of the offence 
libelled. The conclusion at which I arrive is, that as 
this is a purely civil matter, we in the Justiciary Court 
have no jurisdiction, and on that ground I am for re- 
fusing the suspension. 

The other Judges concurred. 

The Court refused the suspension as incompetent, 
and found the suspender liable in expenses. 

JoHif Leishmaw, W.S.— Cbown Agent.— Agents. 



166 CASES BEFORE THE HIGH COURT 

William Gray, Suspender — D. M. Smith. 

AGAJH8T 

James Mackenzie, Respondent — A. Moncrieff. 

Suspension — Appeal — Threatening Letters — Indictment — Vee- 
dict — Expenses. — An appeal to the next Circuit Court taken in 
open Court, under the Act 20th Geo. III. c. 43, in which caution 
had been found, but in which reasons of appeal had not been lodged, 
passed from, and the proceedings brought under review of the High 
Court by suspension. 

Question, Whether or not the purport or object of the alleged threats 
must be set forth in the major proposition of the criminal libel in 
the Sheriff Court, charging the crime * of sending threatening let- 
1 tera?' 

Sentence proceeded on a verdict under the above charge, finding the 
panel ' guilty as libelled of writing letters of a threatening ten- 
1 dency,' — set aside with expenses. 

Expenses of procedure in the Inferior Court refused as against the 
Procurator-fiscal, the sentence complained of having been moved 
for by him in deference to the opinion of the Sheriff-substitute who 
tried the case. 

No. so. Ik this case the suspender complained of the proceed- 

Madlenzie. ings against him under a criminal libel, in the Sheriff 

High court Court of Caithness, setting forth the crime of writing 

18*62. ' and sending threatening letters. The proceedings were 

Suspension, at the instance of the respondent, Procurator-fiscal of 

Court. The major proposition charged the wickedly, 

maliciously, and feloniously writing and sending, or 

causing or procuring to be written and sent, any 

threatening letter or other communication. There was 

no allegation of the purport or object of the alleged 

threats. The minor proposition of the libel consisted of 

seven charges of writing and sending threatening 

letters. 

The first diet under this libel was on the 26th Dec. 
1861, when the following objection was stated to the 
relevancy of the libel : — ' The major proposition is de- 



AND CIRCUIT C0URT8 OP JUSTICIARY. 167 

' fective in so far as it does not charge that the letters or No 30. 
( communications threatened an y injury, or were written Mackenzie 
1 and sent with any criminal purpose ; and without some High cou t 
' specification of injury threatened, or criminal purpose, 1802." 
' the charge is inept/ suspension. 

The Sheriff-substitute (Russell) repelled the objection, 
and found the libel relevant to infer the pains of law. 
The suspender having pleaded not guilty, a second diet 
wag held on the 2d January 1862. The case went to 
trial, and the Jury returned this verdict — The Jury by 
a majority fiad the panel guilty as libelled, of writing 
letters of a threatening tendency under the first six 
charges, and find him not guilty as regards the seventh 
charge. Upon this verdict the suspender was sentenced 
by the Sheriff-Substitute to nine months' imprisonment. 

On the sentence being pronounced, the suspender, 
in terms of the Act 20 Geo. IIL c. 43, intimated his in- 
tention of appealing to the next Circuit Court of Justi- 
ciary to be held at Inverness, and found caution under 
the appeal, and in consequence he was not imprisoned. 

The suspender did not lodge reasons of appeal ; but, 
instead of doing so, presented a bill of suspension to the 
High Court against the Procurator-fiscal, in which he 
stated that the appeal was abandoned, and on the presen- 
tation of the bill of suspension execution of the sentence 
was sisted without caution. 

At advising, Smith for the suspender stated that he 
was informed that the sentence was not to be defended 
by the Crown, in respect the verdict did not find the 
suspender guilty of sending the letters, which was of the 
essence of the crime. He therefore moved that the 
sentence should be suspended simpliciter. No objection 
was offered to this motion. 

As to the question of expenses — 

D. M. Smith for the suspender argued that he was en- 
titled to expenses both in this Court and in the inferior 
Court. The major proposition of the libel was irrelevant 
as itdid not set forth any proper crime or any crime known 



168 CASE3 BEFORE THE HIGH COURT 

No. 30. in law. Letters of a threatening nature might be written 
Mackenzie, for an innocent as well as for a criminal purpose. It was 
High Court. °l u ite easy to forgive perfectly innocent letters containing 
F HK>2 4 * threats. Thus, for instance, the suspender in his profes- 
Sua nsion sion of a writer, as every man in the same profession did, 
wrote many letters of a threatening nature, but there 
was no crime in that, and it was therefore not to be 
assumed in a criminal charge that a letter containing 
threats amounted to a crime, or was written for a 
criminal purpose, unless there was in the libel an ex- 
press allegation to that effect. Such was not alleged 
here, and therefore the suspender was entitled to the 
benefit of the presumption that the letters libelled were 
of an innocent nature. Besides, the term c other com- 
c munication in a charge of writing and sending a 
threatening letter ' or other communication' was absurd, 
as ' other communication* might mean, as it here did 
mean, a communication not necessarily criminal. It 
was therefore of the substance of the charge to set forth 
the purpose in a distinct form. It had been suggested 
on the other side that, because in former cases where 
the purpose was set forth introduced by the term 
' particularly,' that shewed that it was done by way of 
aggravation, the law recognizing the sending of threaten- 
ing letters as constituting in itself a crime. But that 
was not true. It was only of late date that charges of 
this nature have been introduced, and they were always 
libelled as ' innominate offences/ depending as to their 
relevancy on the circumstances of each particular case, 
the term ' particularly 1 not being used to specify an ag- 
gravation, but merely to particularize the special sort of 
innominate offence meant to be charged. There was no 
substantive crime known to the law such as the limited 
one of merely sending threatening letters ; and it was 
plain that it could not be affirmed that every letter con- 
taining a threat was necessarily of a criminal nature, a 
proposition which must be affirmed, otherwise the charge 
of merely sending threatening letters must fail as a 



AND CIRCUIT COURTS OP JUSTICIARY. 169 

criminal charge, it followed that to make a libel re- g»v ». 
levant it was of the essence of the charge that the Mackenzie. 
purpose should be distinctly set forth in the major pro- ^Jj, ^ 4 ' 
position. '862- * 

As to the power and the practice of the Court to Suspension, 
grant expenses in such cases, the suspender referred to 
Hume, vol. ii. p. 135, note ; and to the cases of Wilson 
v. Morrison, High Court, June 15, 1844, Broun, vol. ii. 
p. 231 ; and of Christie v. Adamson, High Court, Octo- 
ber 1, 1853, Irvine, vol. i. p. 293. 

Moncrieff, for the respondent, answered — As the 
charge of writing and sending threatening letters with- 
out specifying the purpose, was well known and recog- 
nised in law, the libel was unobjectionable. The sen- 
tence, however, was objectionable, and could not be 
sustained, as the verdict on which it proceeded failed to 
find the panel guilty of writing and sending as charged 
in the libel. 

In regard to the expenses, it was explained that the 
respondent, at the time,* expressed to the Sheriff-sub- 
stitute doubts whether the verdict was a competent one 
on which sentence could follow, but was overruled. It 
was therefore maintained, that the suspender ought not 
to be found liable in expenses. 

The Lord Justice-Clerk said — As the verdict could 
not be supported as sufficient to warrant any sentence 
proceeding on it, the Court were not disposed, and did 
not consider it necessary to determine, either that the 
libel was a bad libel, or, on the other hand, that it was 
relevant. With regard to the verdict, it appeared, and the 
statement had not been controverted by the suspender's 
counsel, that the respondent stated, at the time, to the 
Sheriff-substitute his doubts as to its validity, and pro- 
posed that the Jury should be reinclosed, in order that a 
proper verdict should be obtained. This suggestion was, 
however, overruled by the Sheriff-substitute, and in 
consequence the Fiscal moved for judgment, when the 
sentence complained of was pronounced. As the Court 



170 CASKS BEFORE THE HIGH COURT 

No. so. were not disposed to lay it down that it would have 
Mackenzie, been proper for the respondent to have acted otherwise 
High Court, in opposition to the opinion of the local Judge, so they 
* e i862?' did not think it would be just to subject the Procurator- 
Suspension, fiscal in the expenses of the Inferior Court. With re- 
gard, however, to the expenses in this Court, they must 
fall on the Procurator-fiscal, as the suspension must be 
sustained. 

The Court (Feb. 24, 1862) passed the Bill, and sus- 
pended the sentence simpliciter, and found the suspen- 
der entitled to the expenses incurred by him in this 
Court. 

Adaksoh & GtJLLAifD, W.S.— Thb Crown Agent— Agents. 



Mar. 21. 
1862. 



Present, 

Lords Cowan, Ardmillan, and Neaves, 

William Smith, Suspender — Watson — Hope. 

AGAINST 

Maurice Lothian, Respondent — A. B. Skand. 

Suspension — Procedure — Sheriff Court — Statute 16th and 17th 
Vict. c. 80 — Indictment — Relevancy — Property of Stolen or 
Embezzled Articles. — The relevancy of a libel in the Sheriff 
Court must be considered at the first diet, and therefore where an 
interlocutor sustaining the relevancy has been pronounced at the 
first diet, it is incompetent to state objections to the relevancy at 
the second diet 

2. A panel was charged with embezzling or stealing funds, the pro- 
perty of ' The Grassmarket Male and Female Yearly Society, or of 
1 the members thereof/ of which he was treasurer. — Objection re- 
pelled, that it was not sufficiently or relevantly stated who the 
owners of the property were, because the society was not registered, 
and had no persona standi, and the members were not named indi- 
vidually. 



AND CIRCUIT COURTS OP JUSTICIARY. 171 

The Suspender was indicted before the Sheriff for No. si. 
Embezzlement and Breach of Trust, or otherwise for Lothian! 



Theft : — High court- 

Mar. 21. 
1862. 
In so fa* as, he the said William Smith haying been, during the ~ : — 

period between the 9th day of October 1860 and the 8th day of No- U8peD8,on ' 
vember 1861, or part of said period, treasurer, or having acted as 
treasurer, to a Society commonly called or known by the name of the 
Grassmarket Male and Female Yearly Society, held in the house of 
the said William Smith, then at or near No. 12 Grassmarket, Edin- 
burgh ; and it being the duty of the said William Smith, and he hav- 
ing been entrusted as treasurer foresaid, to collect or receive the con- 
tributions or deposits payable to the said Society by the members 
thereof, and all sums of money which were payable to or receivable 
by the said Society, and to put such sums as were so collected or re- 
ceived by him the said William Smith into bank, for behoof of the said 
Society or members thereof, or otherwise faithfully to account therefor 
to the said Society or to the members thereof; and he the said Wil- 
liam Smith having, as treasurer foresaid, collected or received during 
the foresaid period, or part thereof from various members of the said 
Society, or for behoof of said Society, various sums of money, viz., 
sums in name of Deposit Money, to the amount of £126, 3s., or there- 
by; sums in name of Sick and Funeral Money, to the amount of 
£23, 3s. 10d., or thereby ; sums in name of Children's Funeral Fund? 
to the amount of £2, 15s. 8d., or thereby ; and Fines to the amount 
of 5s. sterling, or thereby ; and Interest to the extent of £1, 12s. 9£d. 
sterling, or thereby, received from persons who had borrowed money 
from said Society, making together, or amounting in all, to the sum of 
One Hundred and Fifty-three Pounds Nineteen Shillings and Eleven- 
pence sterling, or thereby, and which it was his duty, according to the 
trust foresaid, as treasurer foresaid, to put into bank, or to account for 
as aforesaid, — he did not put the same into bank, nor account for the 
same as aforesaid ; and he did, on various occasions between the said 
9th day of October 1860 and 8th day of November 1861, the particu- 
lar occasion or occasions being to the complainer unknown, in or near 
the house in or near Grassmarket, Edinburgh, then or lately oocupied 
by him the said William Smith, or at some other place or places in 
the city or county of Edinburgh to the complainer unknown, wickedly 
and feloniously, and in breach of the trust reposed in him as aforesaid, 
embezzle and appropriate to his own uses and purposes, the sum of 
Sixty-nine Pounds Eight Shillings and Ninepence sterling or thereby, 
being part of the foresaid sum of One Hundred and Fifty-three Pounds 
Nineteen and Eleven Pence sterling, or thereby, received by him as afore- 
said, and did defraud the said Society out of the same : Ob otherwise, 



172 CASES BEFORE THE HIGH COURT 

No. 31. time or times, and place or places above libelled, he the said William 

Lothian. Smith, did, wickedly and feloniously, steal and theftuously away take 

High Court tne 8a ^ 8um °^ Sixty-nine Pounds Eight Shillings and Ninepence 

Mar. 21. sterling, or thereby, the said money so stolen or embezzled, and so 

appropriated by him the said William Smith, being the property of 



Suspension. t ^ Q ^jj Society, or of the members thereof, and consisting of bank or 
bankers 1 notes, or gold, silver, and copper coin, or of one or more of 
said kinds of money, the particular kind or kinds, or their respective 
amounts, being to the complainer unknown. 

At the first diet, on 13th January, 1862, the Sheriff 
found the libel relevant, and allowed a proof ; and the 
panel, on being then interrogated, pleaded not guilty ; 
whereon the Sheriff appointed the trial to proceed at the 
second diet. It was stated in the suspension (afterwards 
presented) that at this first diet the suspender had no 
agent, and that no discussion took place on the rele- 
vancy of the charge. 

At the second diet, counsel for the panel objected to 
the relevancy of the libel. The record of the proceed- 
ings bore that c the Sheriff, in respect that the libel has 
' already been found relevant by the judgment of the 
' Court at first diet/ ' refuses to allow any objection to 
' be stated to the relevancy as incompetent at this stage ;' 
whereupon the panel pleaded guilty to the charge of 
breach of trust and embezzlement, and the Sheriff 
sentenced him to imprisonment for six months. 

The suspender then applied by suspension to have 
the proceedings quashed, on the ground — 1. That the 
second diet was the proper stage for disposal of the 
relevancy. The Sheriff-Court Act did not authorize the 
Judge to do anything at the first diet, except to take 
the plea of the panel, and pronounce sentence if he 
pleaded guilty. At least it was competent to object to 
the relevancy at the second diet, at which the trial of 
the whole cause was to proceed. 

2. The interlocutor sustaining the relevancy was 
erroneous, because it was not competently or sufficiently 
stated to whom the money said to have been stolen or 



AND CIRCUIT COURTS OF JUSTICIARY. 173 

embezzled belonged. It was said to be the property of No. si. 
the ' Grassmarket Male and Female Yearly Sbciety, or uauJal 
' of the members thereof.' If that society had been a High Court, 
registered friendly society, it would have been necessary ^2. * 
to have described its funds as the property of the Suspension, 
trustee or trustees of the society for the time being 
(18th and 19th Vict. c. 63, sect. 19). But it was not 
stated to be, and it was not in point of fact, a registered 
society ; and, for anything that appeared, it might have 
been an illegal society, the existence of which the Court 
would not recognise, and which could not in the eye of 
the law be proprietor of money. Besides, as a mere un- 
registered society it could not have any persona standi. 
The only other description as to the ownership of the 
money was the alternative statement that it was the 
property of the members of the society, but that was 
vague and insufficient. It was necessary in a criminal 
libel to state the names of those to whom the things 
stolen were alleged to belong, or at least to describe 
them more specifically. 1 

As to the first objection — 

Lord Cowan. — No answer is necessary. The proce- 
dure has been in accordance with the provisions of the 
Sheriff-Court Act, 16th and 17th Vict. cap. 80. At 
the first diet the panel is to be asked to plead to the 
charge and if he pleads not guilty, the trial is adjourned 
to the second diet. The relevancy is properly consi- 
dered at the first diet, and must be sustained before the 
panel can be asked to plead ; this is a very inexpensive 
mode of procedure, and the introduction of it in 
Sheriff-Court criminal procedure is a vast improvement ; 



1 One of the learned Judges in this case is said to have summed 
up the six points of a good indictment in the following couplet : — 

Qnando, ubi, quo pacto, quid, quis commiserit, in quem, 
Recte composites quisque libellus habet 

This, his Lordship, it is added, immediately turned into English : — 

A libel shows us (if we follow Hume), 

When, where, and how—who did what wrong to whom. 



174 CASE8 BEFORE THE HIGH COITRT 

No 31. an d I think it would be well if some similar mode of 

Smith ©• 

Lothian, procedure were introduced in the Supreme Court. 

H W^ urt - Lord Ardmillan. — There cannot be two interlocutors 
1852. * on relevancy. The finding must necessarily be at the 

Suspension. fi re t diet before the panel is asked to plead. He cannot 
be found guilty unless the relevancy has been previously 
established ; and there is no ground for admitting any 
other rule when he pleads not guilty. 

Lord Neaves. — I should have been sorry to have called 
for a reply, because the procedure here adopted is the 
only correct procedure. In old practice a panel was in- 
terrogated twice, whether he was guilty or not guilty — 
first, before the interlocutor of relevancy was pronounced, 
and secondly, afterwards. The first interrogation and 
plea had this effect, that the panel, by pleading, gave 
up all objections to the jurisdiction of the Court and the 
regularity of the citation. After the panel had thus 
pleaded to the merits, he could not object that he 
was not competently called before a competent court. 



1 The Act 16th and 17th Vict. c. 80, provides, section 38, that 
1 In the prosecution of all criminal offences which shall not be tried 
' summarily, the will of the criminal libel shall contain two diets of 
4 compearance in the form of the schedule (L) hereunto annexed; and 
4 at the first of such diets, which shall not be sooner than five days 
4 from the service of the libel, the court sitting in judgment shall call 
1 upon the accused party to plead guilty or not guilty to the crime of 
4 which such party may be therein accused ; and if such party shall 
4 plead guilty, the Court shall forthwith pronounce sentence upon such 
' party, according to the form now in use ; and if the party accused shall 
4 plead not guilty, the trial of such party shall take place on the second 
4 diet of compearance set forth in the will of the libel, which second 
4 diet shall not be sooner than nine days after the first diet, and at 
4 such second diet the party accused shall again be called on to plead 
4 as aforesaid, and if such party shall then plead guilty, the sentence 
4 of the law shall be forthwith pronounced according to the form now 
4 in use ; and if such party shall plead not guilty, a jury shall then be 
4 empanelled, and |the trial shall proceed and be followed out accord- 
4 ing to law, unless the diet shall be further adjourned or deserted ac- 
4 cording to the existing law and practice.' 



AND CIRCUIT COURTS OP JUSTICIARY. 175 

It was the practice to record that plea, but not to g^*' 
authenticate it. The interlocutor of relevancy was then LothUn » 
pronounced, and the panel was again interrogated. 1 ^£JaJf 1 ' 
Then, if a plea of guilty was returned, it was recorded, 1862 - 
and in our earlier practice the jury returned a verdict ^p 611 * 1011 - 
in terms of the panel's confession. The practice, though 
previously changed in the Supreme Court, was not 
altered in the Sheriff-Court till the late Sheriff-Court 
Act. By it the double interrogatory was dispensed 
with. When a plea of guilty is returned under the re- 
cent Act on which sentence may follow, which takes 
place at the first diet, all questions of jurisdiction, com- 
petency of citation, and relevancy, must necessarily be 
previously disposed of. The object of the Statute 
was to prevent discussion on legal questions at the 
second diet, and to leave nothing for the second diet ex- 
cept the examination of the witnesses and the trial of 
the cause. The panel is then allowed a second oppor- 
tunity of pleading guilty, often a most desirable thing 
for him, as preventing exposure to the Court of all the 
details of his crime. 

As to the second objection, the Court held that, look- 
ing to the fact that the panel was treasurer of the 
society whose funds he was said to have embezzled, he 
was sufficiently certiorated as to the ownership of the 
money. 

The Court repelled the reasons of suspension. 

J. Somebtille, S.S.C.— - Cbown Ageht. — Agents. 



176 CASES BEFORE THE HIGH COURT 

William M'Creadie, Suspender — McLaren. 

against 
William Murray, Respondent — A. B. Clark. 

Suspension — Competency — Procedure — Civil or Criminal — 
Weights and Measures — Statute 5th and 6th Will. IV. c.63 — 
Justice of the Peace. — QuoRUM.--Z7eJe7, that a conviction under the 
Statute 5th and 6th Will. IV. c 63, for having Light Weights in a 
place where goods were kept for sale was a criminal proceeding, and 
might be competently suspended by the High Court of Justiciary. ' 

Reasons of Suspension. — (1.) that the warrant of citation was signed 
by one Justice only ; (2.) that one of three Justices who signed a 
minute of adjournment in the cause was disqualified because he had 
not taken the oath of office, repelled, on the ground, (1.) that a 
warrant of citation might competently be signed by one Justice; 
and, (2.) that two Justices were a quorum under the Act, and the 
presence of a disqualified Justice (there being a quorum without 
him) could not invalidate the proceedings. 

M'cieady The suspension was presented against a conviction 
v. Murray. p ronounce( j on 15th November 1861 in Petty Sessions 
Mar. 22?" by Justices of the County of Ayr, proceeding on a com- 
1862 ' plaint by the respondent, Procurator-fiscal at Girvan, 
Suspension. ^ ^i^ conviction the suspender, a grocer in Girvan, 
was convicted € of having had in his possession, time and 
' place charged, four iron weights, light or otherwise 
' unjust, in contravention of the Statute 5th and 6th 
' Will- IV. c. 63, as charged/ and was adjudged to pay 
£2 of modified penalty, and in default of payment with- 
in fourteen days to be imprisoned for forty days. 

The principal grounds of suspension were — (1.) that 
the warrant of citation was signed by one Justice only, 
while it was contended that under the Statute, section 
37/ the concurrence of two Justices was required in all 



1 The Statute 5th and 6th Will. IV., c. 63, enacts, section 37, 
4 That in Scotland, all penalties incurred under the provisions of this 
* act, or of any of the before recited acts, shall be recoverable with 
' expenses either before the Sheriff of the County, or the Magistrates 



AND CIRCUIT COURTS OF JUSTICIARY. 177 

proceedings under the Act. (2.) That at the first diet No. 82. 
when the complainer pleaded not guilty, and the case *. Murray, 
was adjourned, one of the three Justices who sat on the HighCoun. 
Bench, and who signed the minute of adjournment m2.' 
was not qualified to sit, because he had not taken the suspension, 
oath of office. 

The respondent objected to the competency of the 
suspension in the Justiciary Court, on the ground that 
the proceedings were civil. 

On the question of competency — 

Clark, for the respondent, argued — Proceedings un- 
der this and similar Acts were civil, and suspension in 
the High Court was incompetent. For instance, sus- 
pensions of convictions under the Solway Fishing Act 
were proper to the Court of Session, and a person con- 
victed of taking salmon in close time had been held en- 
titled to the Act of Grace, thereby proving that his im- 



1 of the Burgh or Town Corporate wherein the same may be incurred, 
1 or where the offender may reside, or before two or more Justices of 
1 tbe Peace of such county, at the instance either of the Procurator- 
' fiscal of court, or of any person who may prosecute for the same ; 
' and the whole penalties, after deducting all charges and such re- 

* numeration to the person prosecuting as the said Justices shall think 
1 fit, shall be applied in aid of the funds liable under the provisions of 
' this act, to the cost of providing and maintaining copies of the Ira- 
' perial Standard Weights and Measures in the place where such 
1 penalties shall be awarded ; and it is hereby provided, that it shall 
4 be competent for the said courts respectively to proceed in a sum- 
' mary way, and to grant warrant for bringing the parties complained 
( of before them, and upon proof on oath by one or more credible wit- 
1 nesses, or on the confession of the offender, or on other legal evidence, 
1 forthwith to give judgment on such complaint, without any written 
' pleadings or record of evidence, and to grant warrant for the recovery 
4 of such penalties and expenses decerned for, failing payment within 
1 fourteen days after conviction by poinding, or by imprisonment for a 

* period at the discretion of the Court not exceeding sixty days, it 
' being hereby provided that a record should be preserved of the charge 
' and of the judgment pronounced.' 

VOL, IV. M 



178 CASES BEFORE THE HIGH COURT 

No. 32. prisonment was for a civil debt — Park and others v. the 
v. Murmy. Earl of Stair, High Court, Jan. 12, 1852, J. Shaw, 
Higucourt. p. 532 ; Robertson v. Collins, Feb. 16, 1837. In the 
18*62. " case of the Duke of Richmond v. Dempster, High Court, 
Suspension. Jan. 14, 1861, Irvine, vol. iv. p. 10, in which the High 
Court entertained a complaint for contravention of 8th 
and 9th Vict. c. 26, that Court acted as a court of re- 
view. But here it was asked, as a court of original 
jurisdiction, to quash this sentence. In suspension of 
convictions under the Forbes-Mackenzie Act (16th and 
17th Vict. c. 67), the proper court was the Court of 
Session ; yet breaches of certificate under that Act might 
in many cases necessarily amount to an offence at com- 
mon law. For instance, a person was by his certificate 
prohibited from using weights and measures not autho- 
rised by the statute ; yet suspension of a conviction of 
breach of that provision of the certificate would require 
to be brought in the Court of Session ; that was closely 
analogous to the present case. That the sentence and 
warrant of imprisonment were in one and the same con- 
viction and deliverance, did not prove the proceedings 
to be criminal. They were so according at least to the 
practice in Glasgow in convictions under the Forbes- 
Mackenzie Act, and might be so under the Salmon- 
Fisheries Act. — Macphaii v. Campbell, High Court, Mar. 
18, 1861, Irvine, vol. iv. p. 18. 

On the merits — To issue a warrant of citation was a 
ministerial act which might be done, as was quite settled 
by one Justice. Then whether the Justice said to be. 
disqualified was bound to take the oath or not did not 
signify, because there were two Justices (under the Act 
a quorum) without him ; and his neglect to take the oath 
did not invalidate his act — Livingstone, June 26th, 
1846, 8 D. B. M., p. 898, and 6 Bell's App., p. 469. 

For the Suspender — It was not necessary, in order to 
vindicate the jurisdiction of the High Court, to maintain 
that the Court of Session would not have had power to 
entertain a suspension of this conviction. The Court of 



AND CIRCUIT COURTS OP JUSTICIARY. 179 

Session had jurisdiction to repress all excess of power by J* - 32 : 
inferior Courts, and to quash all sentences which were t. Murray . 
ultra vires of the Judges pronouncing them — MaiUand HighCoort. 
v. Douglas, Court of Session, Dec. 12, 1861, 24 D. B. M., *wt 
p. 193 ; Evans v. M'Louyhlan, Court of Session, Feb. 18, Siwpeniwn. 
1859, 21 D. B. M., p. 532, and Feb. 21, 1861, 33 Scot. 
Jut., p. 293. But the Court of Justiciary had, notwith- 
standing, power to repress ail excess of jurisdiction by 
inferior Courts in proceedings of a criminal nature. 

It was maintained that the proceedings were of a 
criminal nature, because — (1.) the offence charged was 
in its nature criminal ; the use of light weights was a 
point of dittay — Hume, vol. i. p. 177. It was true 
that here the thing charged was not the use of light 
weights, but only the possession of them by a person 
keeping goods for sale, under section 28 of the Act. 
But the reason why the possession of light weights was 
prohibited by and punishable under the Act was, that 
possession tended to lead to the commission of the 
offence of using. It would be anomalous to hold that a 
proceeding under the statute for using light weights was 
criminal, and that a proceeding under the statute for 
possessing them was civil. (2.) The proceedings were 
maintained to be criminal because the fine was not pay- 
able to a party injured or to the complainer, but were 
payable into a public fund, established by the Act with 
a view of carrying out its provisions. Further, the steps 
of procedure were analogous to criminal procedure; the 
diet was peremptory, the proceedings were commenced 
by apprehension, the oath of one witness was declared 
sufficient for conviction, the judgment was described as a 
conviction, and the warrant of imprisonment was con- 
tained in the sentence. 

On the merits — (1.) the Act contemplated that all 
proceedings under it should have the sanction of two 
Justices at least. (2.) The taking of the oath defideli 
was a condition precedent of the power of a Justice of 
Peace, 1617, c. 8, sect. 8- 



180 CASES BEFORE THE HIGH COURT 

No. 32. The Court held the proceedings criminal, and the 

M'Creadie l . 

». Murray, suspension competent; and on the merits — (1.) that the 
High court, warrant of citation was competently signed by one 
1862. Justice ; (2.) that as there was a quorum of the Justices 
Suspension, under the Act duly qualified, at the diet when the ad- 
journment took place, the presence of the third Judge 
could not in any view invalidate the proceedings. 
The bill was therefore refused. 

Durcar & Dbwab, W.S, — Cbown Aokit. — Agents, 



NORTH CIRCUIT. 

April 18. 

1862. PERTH. 

Judges — Lords Ardmillan and Neaves, 
Her Majesty's Advocate — Shand A.D. — Kinnear. 

AGAINST 

James Molyson — J. C. Smith. 

Prosecution — Time op Trial — Liberation — Statute 1701, c. 6. — 
A prisoner committed on a charge of Forgery ran his letters, and 
was brought up for trial on criminal letters 146 days afterwards — 
Plea, that under the act 1701, c. 6, the Public Prosecutor was 
bound to complete the trial of a prisoner within 140 days after he 
had run his letters, and that therefore the prisoner was entitled to 
liberation, repelled, on the ground, that while the act 1701 entitled 
a prisoner to demand liberation within a certain time after he had 
run his letters if he was not served with criminal letters, that act 
did not in any way limit the Public Prosecutor as to the time when 
he might serve criminal letters. 

James In November 1861, James Molyson was apprehended 
MojysoiL on a charge f having forged and uttered six bills or 
Aprfus. bill-stamps. On this charge he was committed, and he 
1862, immediately, or shortly thereafter, made application 
Forgery ' with a view to trial, under the Act 1701, c. 6, and ob- 
tained letters accordingly. He was afterwards charged 
with six other Acts of forgery, and another warrant of 
commitment was made out. No indictment was served 



AND CIRCUIT COURTS OP JUSTICIARY. 181 

on him. But on 29th March he was served with No. 33. 
criminal letters, charging him with the forgery and m©*^. 
uttering "of twelve bills or bill-stamps, intended to be Perth, 
filled up and used as bills. A m2.*' 

On 2d May he was brought up for trial at the Perth Forgery. 
Circuit on the criminal letters, 146 days having elapsed 
between the intimation to the public prosecutor under 
the Act 1701 and the date of the tnal. 

J. C. Smith, for the panel, moved for his liberation, 
on the ground that he was illegally in custody, in re- 
spect he had not been brought to trial within 100 days 
from the date of the intimation to the public prosecutor. 
By the Act 1701, c. 6, the public prosecutor was re- 
quired to fix a day for trial within sixty days after the 
intimation ; and then it was required that the trial should 
be brought to a final determination within forty days, 
foiling which the prisoner was entitled to liberation, 
1 unless there be new criminal letters raised before the 
' Commissioners of Justiciary, and duly execute against 
' the said prisoner/ The Act was no doubt obscurely 
expressed, and had at different times been differently in- 
terpreted. At the period immediately after it was 
passed, it had been held to limit the public prosecutor to 
100 days for concluding the trial against a prisoner. 
But it was subsequently interpreted so as to give the 
prosecutor 1 00 days in which he might proceed by in- 
dictment, and 40 days more, during which he could 
proceed by criminal letters. But in no case had it 
been held that the prosecutor could have more than 
140 days. Here 146 had elapsed. 

The argument, that the right conferred by the Act 
on a prisoner was merely the right to be released 
from prison on the lapse of the 100 or 140 days, as the 
case might be, was ill-founded. Because, in the pre- 
amble of the Act it was declared that the object of it 
was to remedy the evil of ' delaying to put* prisoners 
' to trial/ — an object which, of course, was not in the 
least accomplished, if the true reading of the Act were 



182 CASES BEFORE THE HIGH COURT 

j^' not l ^ a * contended for ; because, if the effect of the Act 

M<rty*m- were not to force on a man's trial within the days sped- 

Aprins. fi^* but merely to entitle him to liberation, leaving 

1862 - it open to the prosecutor to try him on criminal letters 

Forgery. a fc an y time before the years of prescription (applicable 

to crimes), the Act, of course, failed entirely of fulfilling 

its declared object — Burnett's Criminal Law, 356. 

Lord Ardmillan. — The main purpose of the Act of 
1701 was not merely to prevent undue delay in the trial 
of a prisoner, but to enable him to force his way out of 
prison if the public prosecutor did not proceed with the 
trial, in the form prescribed by the Act, within a cer- 
tain time. And no doubt in this case the prisoner 
might have forced his way out of prison. No procedure 
could be taken against him under an indictment; but 
there is no valid objection to his trial under the criminal 
letters. 

According to the more recent authorities applicable 
to the case where a prisoner has, under the Act of 
1701, run his letters, the result is, that if the public 
prosecutor fails within sixty days to fix a day for his 
trial, then he is entitled to his liberation ; and there his 
rights under the first part of the Act end. »4 

But then Hume says : ' Although the prisoner has 
' been released in respect of the failure to raise a process 
€ within the sixty days, yet a libel for the same crime, 
s at the instance of the same informer, may be after- 
' wards executed against him; and that, having thus 
' given earnest of his resolution to insist without delay, 
' the prosecutor, either at executing his criminal letters 
' or afterwards, may have a warrant to recommit the 
' accused in order to his trial. But, to guard against a 
1 long confinement, in this case the trial of this libel 
' must be brought to an issue within forty days, which 
' are here to be counted from the time of recom- 
' mitment. If the trial is not finished within that 
' period, the Court are then under the necessity of de- 
' serting the diet simpliciter, and the panel should be 



Forgery. 



AND CIRCUIT COURTS OP JUSTICIARY. 183 

' free for ever of all question or challenge touching the jjjjjf - 
' offence.' ****»- 

The true protection which a prisoner has under this A p ^* 8 
Act is protection against continued imprisonment ; and, J*** 
besides, if the prosecutor, after the lapse of the time 
daring which he may proceed by indictment, serves 
criminal letters and blunders these, then the prisoner 
cannot be tried for the offence again. But the Act 
affords no objection to the trial proceeding under these 
criminal letters. 

Lord Neaves. — I am of the same opinion. This Act 
confers important benefits on prisoners. When a man 
is put in jail, he can call on the public prosecutor to fix 
a day for trial within a certain time, and to complete 
the trial within a certain time, and if the public prose- 
cutor do not do so, the prisoner can have liberation. 
Then the public prosecutor can have one more chance. 
Taking his own time, and with all necessary care, he 
may proceed to serve criminal letters ; and if any blunder 
occurs in prosecuting *the trial under these criminal 
letters, then the prisoner escapes altogether. But the 
Act, although conferring these valuable privileges on a 
prisoner, gives no support to the objection which has 
now been taken. 



Her Majesty's Advocate— Shand A.D. — Kinnear. 

AGAINST 

Mat Grant — W. A. Brown. 

Mxranw — Evidence — Competency. — In a trial of a woman for Child- 
morder, it was proposed, on the part of the Crown, to ask a woman, 
in whose charge the prisoner had been left for a short time by the 
poHeeman who had the prisoner in custody, what the prisoner had 
said to her, in reference to the alleged murder, in answer to a ques- 
tion pnt by the woman — Circumstances in which the question was 
dkaBowed. 



184 CASES BEFORE THE HIGH COURT 

N May 4 ' ^ HIS was a case °^ child-murder, in the course of 

Grant - which the Advocate-Depute proposed to prove an ad- 

Aprin 8 m ^ ss i° 11 ^y ^ e prisoner in the following circumstances : 

1862 » — The prisoner was apprehended by Turnbull, a criminal 

j^JJ^, officer, and was brought by him to Pitlochry on their 

way to Perth. On arriving at Pitlochry, by which time 

they had already been some hours on the journey, 

Turnbull took his prisoner to the house of Young, a 

police officer, and left her for about half an hour in the 

charge of Young's wife. Young's house was also a 

police-station, and a number of witnesses had been 

brought there to identify the prisoner. The two women 

were left alone in the room, Turnbull standing outside 

the door. Mrs. Young began to fondle her baby, on 

seeing which the prisoner burst into tears, and Mrs. 

Young said to her — ' I suppose you would be glad to 

€ have your own child again?' 

The Advocate-Depute proposed to ask Mrs. Young, 
who had deponed to the circumstances above stated, — 
' What was the prisoner's answer to that observation ?' 

Brown, for the prisoner, objected that her answer 
was not admissible in evidence, and that no statement 
of any further conversation that may have passed be- 
tween the prisoner and witness ought to be received. 

Lord Ardmillan. — I think this examination should 
not be allowed. It is beyond all doubt that Turnbull, 
having the prisoner in custody, could not have been 
permitted to prove any admission made by the prisoner 
to him in reply to an indirect question of this kind. 
Nothing elicited by him in such a manner could have 
been legitimate evidence, and I do not see that it be- 
comes legitimate evidence, because, instead of being eli- 
cited by him, it was so by a woman to whose custody 
he had temporarily entrusted his female prisoner. Where 
is it that this conversation is said to have taken place ? 
In the dwelling-house of a policeman no doubt ; but in 
a dwelling-house which was also a police-station. It is 
proved that a number of witnesses had been brought 



AND CIRCUIT COURTS OF JUSTICIARY. 185 

there for the purpose of identifying this very prisoner. ^J 4 ' 
Now the prisoner is left alone in this house with a woman Grant - 
and child ; and if not for the purpose, at least with the J^*{ 8 
effect, of working on the feelings of this prisoner — an i862- 
ignorant Highland girl — the woman ostentatiously ^Su 
fondles the child, the prisoner bursts into tears, and it 
is then that questions are put to her, and answers elicited, 
on which the Advocate-Depute now proposes to found. 
I think these answers ought not to be admitted. They 
would not have been evidence if they had been elicited 
by TurnbulL They would not have been evidence if 
they had been elicited by the other policeman, Young, 
and they cannot be evidence when elicited by the wife 
of Young, in whose custody the prisoner really was for 
the time. To sustain such an inquiry might allow a 
woman to be entrapped into a confession. 

I do not believe that anything improper or unfair was 
intended on this occasion ; but the safe course is, under 
these circumstances, to stop the inquiry. 

The Advocate-Depute then withdrew the case. 



ABERDEEN. April 24. 

1862. 

Judges — Lords Ardmillan and Neaves. 
Alexander Edward, Appellant — Badenach-NicoUon. 

AGAINST 

The Inverness and Aberdeen Junction Railway, Respondents — 

A. B. Shand. 

Appeal — Railway — Domicile — Jurisdiction. — In an action against 
a Railway Company, the summons was served at Keith, in the 
comity of Banff, and at Inverness the statutory domicile. The 
cause of action arose in the county of Elgin, and the action was 
brought in the Sheriff Small- Debt Court of Banffshire. The Sheriff- 
Substitute dismissed the action on the ground of no jurisdiction— 
Held, on appeal to the Circuit Court, that he was right in so doing. 



186 CASES BEFORE THE HIGH COURT 

jJj^JJj This was an appeal from a decision in the Sheriff-Court 
». The in- of Banffshire, under the following circumstances : — 
Aberdeen The appellant, a farmer at Balgreen, near Keith in 
Railway? Banffshire, was the owner of a filly, which, on June 4, 
Aberdeen. 1861, was pasturing on a field through which the re- 
p i862. " spondents' line of Railway runs. The filly, frightened 
Appeal by the approach of one of the respondents' trains, over- 
leaped the Railway fence, got upon the line, and was 
killed by the train. The field on which the filly was 
pasturing was in the County of Elgin. The Railway 
Company have their principal office at Inverness, which 
is one of their termini, the other being at Keith, where 
also they have a station and carry on business. 

Edward raised an action against the Company before 
the Sheriff of Banffshire, in his Small Debt Court at 
Keith, concluding for the sum of twelve pounds sterling 
as the value of the filly, the death of which, as he 
alleged, was caused by the insufficiency of the Company's 
fences at the point in question. 

The Company took various preliminary objections to 
the action, and, amongst others, that the jurisdiction of 
the Sheriff of Banffshire was excluded not only at 
common law, but also by statute : at common law in re- 
spect that the accident took place in the County of Elgin, 
and by statute in respect that by the Company's Act of 
incorporation, section 47, it is expressly provided that 
' the domicile of the Company in reference to all 
' judicial proceedings and actions at law shall be held to 
' be in Inverness/ 

The Sheriff substitute (Gordon) sustained the object- 
ion of want of jurisdiction, and dismissed the complaint, 
against which judgment Edward appealed to the Circuit 
Court of Justiciary. 

Badenach Nicolson, for the appellant, argued — The 
Company had been served with a summons at Keith, 
and also for greater security at Inverness, their head- 
quarters, and Keith being a principal station, and in 
the County of Banff, the company were liable to 



AND CIRCUIT COURTS OP JUSTICIARY. 187 

the jurisdiction of the Sheriff of Banffshire; the 5y-**\ 
cases of The Aberdeen Railway Company v. Ferrier, t. The in- 
Court of Session, Jan. 28, 1854, 16 D. B. M., p. 422 ;7SSS? 
and Dick v. Great North of Scotland Railway Com- £3^ 
pony, Aberdeen, Oct. 8, 1860, Irvine, voL iii. p. Aberdeen. 
616, were authorities in point. He contended that the a \m%' 
appeal was competent, and that the Sheriff-Substitue Appeal. 
was wrong in refusing to entertain the action. 

The Court did not call on the respondent to reply. 

Lord Neavks. — This is a case of some importance. 
Two matters are here brought under our consideration. 
(1.) Is this a competent appeal ? Can we in this way 
compel as it were the Sheriff to do his duty by sustain- 
ing his jurisdiction ? (2.) There is the question on the 
merits with which the first point is perhaps in some de- 
gree mixed up. As to the case of Ferrier which has 
been quoted to us, I have no doubt whatever of the 
soundness of that decision in the circumstances in which 
it was pronounced, and to which alone it is applicable. 
The case was that of a person contracting in or near 
Brechin, and who chose to bring his action against the 
Railway Company at Brechin. But I do not think that 
either that case or the case of Dick rules the present. 
In each of these the defender was cited at the place 
where the contract locally had its origin.' I am not 
prepared to say that either of these cases would be 
authority for holding that any one having a claim 
against a Bailway Company might cite that Company 
at any Station along its line. Here we have a particu- 
lar statute, and it might be competent under it to cite 
the Company at Inverness. But in the present case 
the statutory domicile is in one county, the injury is 
committed in another, and the action is brought in a 
third. I hold in these circumstances that the Sheriff 
was right in declining his jurisdiction ; and, further, I 
have very great doubt whether even had he held that 
he had gone wrong in doing so, we are entitled in the 
way here contended for to compel him to go right. 



188 CASES BEFORE THE HIGH COURT 

No. 86. I say nothing as to the question whether, the ac- 
».Thein- cident having occurred in Elginshire, the Company 
V A^era could competently have been summoned in that shire. 
£jj£jJJJI Lord Ardmillan. — I am of the same opinion, more 
Aberdeen, especially as to the first point. I have great doubt 
A t862? 4, whether we can interfere in this matter in the way here 
AppeftK contended for, and I also doubt as to what may be 
called the merits of this case of jurisdiction. Neither 
the cafle of Ferrier nor that of Dick touch the present 
case. The Sheriff is the true judge ordinary of the 
bounds, and where the delict or origin of action is with- 
in his jurisdiction the defender is bound to answer ; but 
the appellant does not profess to show us any authority, 
or any reason apart from authority, for holding that the 
Railway is to be held responsible at every station along 
the line ; and where, as here, the cause of action is in 
Elginshire, the Company is cited at Inverness, and the 
action is brought before the Sheriff of Banff, I see no 
principle or authority for sustaining his jurisdiction. 
I cannot see that a railway company can be liable to 
be summoned in every county through which their line 
runs. 

The Court dismissed the appeal with seven guineas 
of modified expenses, besides the dues of extract. 

Jaiues Richabmon, Solicitor, Keith— William Johnsioh, Solicitor, Keith— 
Agents. 



AND CIRCUIT COURTS OF JUSTICIARY. 189 

INVERNESS. 

Mayl. 
Judges — Lords Abdmillan and Neaves. 

He* Majesty's Advocate — Shand A.D. — Kirmear. 

AGAINST 

Christina Craig — Skelton — SeUar. 

Child-Murder — Indictment — Relevancy — Modus. — Objection to 
the description of the modus operandi in a charge of Child- Murder 
repeUecL 

Christina Craig was charged with the crime of Child- ££*^ 
Murder : — c™ g . 

In so far as (time and place libelled), you the said Christina Craig ln ^ a ^ Bu 
having given birth to a living male child, did immediately, or soon 1862. 
after the birth of your said child, wickedly and feloniously, attack and ^ hild . 
assault your said child, and did grasp and compress the throat of your Murder, 
said child ; and further, did dash or violently strike the head of your 
said child against the wall or floor or other part of a water-closet 
situated on the ground or basement floor of said house, or against the 
wall or floor or other part of a room known as the still-room, situated 
on the ground or basement floor of the said house ; or did violently strike 
your said child on the head with some hard substance or weapon to the 
prosecutor unknown, whereby your said child had its skull severely 
fractured, and was mortally wounded, and in consequence, immediately 
or soon thereafter died, and was thus murdered by you the said 
Christina Craig. 

Counsel for the panel objected to the words, ' did 
1 grasp and compress the throat of your said child/ and 
argued that they should be struck out of the indictment. 
If strangulation had been libelled as the cause, or one 
of the causes, of death, these words would have been 
relevant. But the cause libelled was fracture of the 
skull, and that alone. 

The Court repelled the objection. 

The panel pleaded not guilty. The jury returned a 
verdict of culpable homicide, with a unanimous recom- 
mendation to mercy. The sentence of the Court was 
six years' penal servitude. 



June 9. 
1862. 



190 CASES BEFORE THE HIGH COURT 

HIGH COURT. 

Present, 

The Lord Justice-General, 

Lords Cowan and Deas, 

Her Majesty's Advocate — W. Ivory A.D. — Oifford A.D. 

AGAINST 

Abraham Langlet — W. A. Brown. 

Bigamy— Indictment — Relevancy. — Objections to the relevancy of 
an indictment for Bigamy, on the ground that both marriages were 
irregular — repelled. 

Abrahlm Abraham Langley, a fisherman in Eyemouth, was 
Lan g |e y* charged with the crime of Bigamy : — 

High Court. 

?8fi2 9 * * N 80 FAR AS * y° u navm & on th© 10th day of April 1859, or on 
one or other of the days of that month, or of March immediately pre* 



iigi 
Jt 



igamy. ce ^ n g f or f ft&y immediately following, within the house at or near 
Lamberton Toll-bar, in the parish of Mordington, and shire of Ber- 
wick, occupied by James Dixon, toll-keeper, been lawfully married to 
Elizabeth Purves or Purvis, daughter of, and now or lately residing 
with, Robert Purves or Purvis, tailor, in Eyemouth, in the Parish of 
Eyemouth, and shire of Berwick, the marriage ceremony having been 
performed by Andrew Lyons, tailor, now or lately residing at Walker- 
gate Lane, Berwick-on-Tweed, and you having thereafter lived and 
cohabited with the said Elizabeth Purves or Purvis as your wife in a 
house in Eyemouth aforesaid, in which house you and the said Elizabeth 
Purves or Purvis resided together as husband and wife for six months 
or thereby, or for some other period to the prosecutor unknown ; and 
the said Elizabeth Purves or Purvis being still alive, and your mar- 
riage with her still subsisting, you the said Abraham Langley did, on 
the 28th day of July 1861, or on one or other of the days of that 
month, or of June immediately preceding, or of August immediately 
following, within the said house at or near Lamberton Toll-bar afore- 
said, occupied by the said James Dixon, wickedly and feloniously, 
enter into a matrimonial connection with Ann Dougal, now or lately 
risiding in Eyemouth aforesaid, the marriage ceremony having been 
then and there performed by the said Andrew Lyons, tailor, and yon 



AND CIRCUIT COURTS OF JUSTICIARY. 191 

the said Abraham Langley did afterwards cohabit with the said Ann No. 37. 

Dougal as your wife ; and all this you did, well knowing that the said i^giey, 

Elizabeth Purves or Purvis was still alive, and that your marriage H5KhCourti 

with her still subsisted. June 9. 

1862. 

W. A. Brown for the panel objected to the relevancy BigMny> 
of the indictment — (1.) Because it charged the crime of 
bigamy upon the foundation of a previous marriage, 
which was not a regular marriage according to the 
law of Scotland ; whereas by that law it was neces- 
sary to infer liability for such a crime that the first 
marriage should have been regularly contracted. 
(2.) and alternatively with the first objection, because 
it charged the crime of bigamy upon the foundation of 
a previous marriage, which was not only not a regular 
marriage by the law of Scotland, but was not embraced 
within the specified modes by which marriage might be 
irregulary contracted. In the event of the marriage 
libelled on being sustained as one of the kinds of irregular 
marriages known to the law of Scotland, the second ob- 
jection would take the form of an objection to the speci- 
fication in the libel, in so far as the indictment did not 
set forth the names of the witnesses who were present 
at the marriage. (3.) By the Marriage Law Amend- 
ment Act, 1856, it was necessary in the declarator of an 
irregular marriage to set forth that one of the parties 
had resided in Scotland for twenty-qpe days previously, 
and the same principle must by analogy be held to ap- 
ply to the charge of bigamy founded upon an irregular 
marriage. (4.) While the previous marriage was irregu- 
lar, the crime was sought to be established by proof of a 
second marriage which was irregular also, and two irre- 
gular marriages did not make a relevant charge of 
bigamy. Reference was made to Hume, vol. i. p. 669 ; 
Alison, vol. i. p. 536 ; and the cases of John Armstrong, 
High Court, July 15, 1844, Broun, vol. ii. p. 251 ; 

William Brown, High Court, Dec. 24, 1846, Arkley, 
p. 205 ; James Purves, High Court, Nov. 20, 1848, 
J. Shaw, p. 124. 



192 CA8ES BEFORE THE HIGH COURT 

Abnham Gifford for the prosecution admitted that there had 

Lmgiey. been no case exactly similar to the present, but the de- 

H ?uiw > 9. rt " ckions i n former cases led necessarily to the conclusion 

1862. that the charge here was relevant. In the passage 

Bigamy, quoted from Hume that writer had in view a marriage 

by habit and repute, which was not the case here. The 

Court were here dealing with a marriage where there 

had been a formal celebration ; and although that was 

not a legal celebration, it stood in a position altogether 

different from a marriage by habit and repute. There 

was no authority to support the objections. Apart 

from the law of the case, it would be highly inexpedient, 

on grounds of public policy to sustain objections which, 

if allowed, would give impunity to persons contracting 

any number of marriages, if only they avoided the 

regular form. He referred to the case of William 

Sharpe or M'Fie, High Court, July 10, 1843, Broun, 

vol. i. p. 568. 

Lord Cowan. — There can be no doubt that the 
opinion, or doctrine, or statement of the law on this 
point given by Hume, has been to a considerable extent 
departed from in cases decided since his time. I think 
the allegation here that these persons were lawfully mar- 
ried is sufficient, and that it is enough to set forth in each 
instance a marriage valid by the law of Scotland. It 
seems to me that the judgment of this Court in the case 
of Brown is decisive of the present case. There, as 
here, the first marriage was irregular, and the decision 
directly contradicts the argument here maintained for 
the panel that the first marriage must be one in facie 
evclesice. It is said that the case of Armstrong goes 
to show that this is a doubtful matter ; had this 
been so, it might have been advisable to take the 
opinion of the whole Court, but I repeat that it seems 
to me this question was raised, and substantially de- 
cided in the case of Brown. 

I apprehend that where a marriage, good by the law 
of Scotland, is entered into, all the consequences, criminal 



AND CIRCUIT COURTS OF JUSTICIARY. 193 

* 

as well as civil, follow from such a marriage. I cannot No. 37. 
enter into the doctrine that a declarator is indispensable ; Lan g i«7 
we know that it is not so. But I must guard myself High Court, 
by this reservation, that there may be some kinds laSa." 
of irregular marriage which would not have this effect. Bigamy. 
I am not prepared, for example, to say that a mar- 
riage by habit and repute would be sufficient, because 
there is no distinct and definite time to which the 
exact commencement of such a marriage can be referred, 
and at which it can be said to have taken effect, and 
our law as to habit and repute is in many ways very 
peculiar. As to the question now before us, whether 
this indictment regularly 6ets forth bigamy, where it 
charges that crime as committed by the panel entering 
into a second irregular marriage, I am of opinion that 
it does, and that we must hold the indictment to be 
relevant. 

Lord Deas. — The indictment sets forth, that on the 
occasion of both the marriages libelled, ' the marriage 
1 ceremony ' was performed by Andrew Lyons, a tailor, 
within a certain house in Berwickshire. Both marriages 
were admittedly irregular. Now, it has been decided that 
bigamy may be committed where one of the two mar- 
riages has been irregular, whether that marriage was the 
first or the second one ; and I think it legitimately fol- 
lows, that it may be bigamy although both are irregular. 
I must add, however, with Lord Cowan, that I do not 
think it necessarily follows that every description of 
irregular marriage will found a charge of bigamy. I 
cannot but see that there might be a difficulty in so 
holding as to marriage by habit and repute, or by pro- 
mise subsequente copula. There may be difficulties in 
such a case, not so much in principle as in the nature 
of the proof required to ascertain the facts, and the 
doubtful nature of the questions of law involved, which 
might render it unsatisfactory to convict, and may go 
the length of founding an objection to the relevancy. 

VOL. IV n 



194 CASES BEFORE THE HIGH COURT 

« 

AbnhLm But w ^^ e I reserve my opinion in such a caee, I concur 
^g* 6 *' with your Lordships as to the relevancy of the indiet- 

B ^S^ t ment now before us - 
1862 - The Lord Justice-General. — I concur. Whatever 
Big»my. ma y ^ave been the view taken of this question in the 
time of Baron Hume, who, according to his custom, 
here speculates and gives the arguments either way, it 
is clear that the decisions since 1843 exclude all dubiety 
as to such a case as the present. Here, no doubt, both 
marriages are irregular, but they are contracted at differ- 
ent times and places, and a ceremonial of some sort is 
gone through on each occasion. The case of Sharpe was 
that of an irregular marriage following on a regular 
marriage. The case of Brown was one of a first marriage 
being irregular. I agree with your Lordships, that 
where it has been decided that the first marriage maybe 
irregular, and that the second marriage may be irregular, 
I see no room whatever for doubting that where both 
are irregular, an indictment for bigamy may be sustained. 
It has been decided that a charge of bigamy will lie 
where one of the marriages is irregular, whether that 
be the first or the second. I think this is really con- 
clusive of the present case where both are irregular. 

The case of Armstrong was a peculiar one, there being 
there an alternative, and a good deal may be said for 
the expediency in such a case of making the prosecutor 
fix on one or other alternative ; but, on the whole, I 
have no hesitation in the present case in concurring 
with your Lordships. 

The objection was repelled, and the indictment held 
relevant. 

The panel pleaded Not Guilty, and the case went to 
trial. 

The Jury unanimously found the panel guilty as 
libelled. 

Sentence, three years' penal servitude. 



AND CIRCUIT COURTS OF JUSTICIARY. 195 

Present Jalie 28 - 

The Lord Justice-General, 
Lords Neaves and Jerviswoode, 
Her Majesty's Advocate — Sol-Oen. Maitland — W. Ivory A.D. 

AGAINST 

Mart Scallt or Scollt — Badenach-Nicolson. 

Murder — Indictment — Relevancy. — In an Indictment for the 
murder of a child, the alternative, ' or did, in some other way to the 
4 prosecutor unknown, maltreat the said child/ struck out on the 
motion of the prosecutor. 

Mary Scallt or Scollt was charged with the crime No. ss. 

#»r j MarT 

of Murder : — s »iiy or 



Scoi 



Ivor 
Jly. 



Murder. 



In so far as, on the 3d day of March 1862, or on one or other of the High Court, 
days of that month, or of February immediately preceding, or of April 1862.*" 
immediately following, at or near a part of the Forth and Clyde - 
Canal situated between the bridge over said Canal, at or near Castle- 
ciry, commonly called or known as Castlecary Bridge, in the parish of 
Falkirk, and shire of Stirling, and the lock on said Canal commonly 
called or known as Wyndford Lock, in the parish of Cumbernauld 
and county of Dumbarton, and to the westward of the said Castle- 
cary Bridge, the precise part of the said canal being to the pro- 
secutor unknown, or at or near some other part of said canal to the 
prosecutor unknown, you the said Mary Scally or Scolly did, wickedly 
and feloniously, attack and assault a male child, then about four or 
fire days old, now deceased, of which you were the mother, and which 
was then in your charge and custody, the same having no name, or 
having some name to the prosecutor unknown, and being illegitimate, or 
at least its paternity being to the prosecutor unknown, and did throw or 
push the said child into the said Canal, and did leave it there ; in con- 
sequence whereof the said child was drowned and deprived of life, and 
the said child was thus murdered by yon the said Mary Scally or 
Scolly : Or otherwise, Time and Place above libelled, or at some 
other place in the county of Stirling or county of Dumbarton to the 
prosecutor unknown, you the said Mary Scally or Scolly did, wickedly 
and feloniously, attack and assault your said child, and did with your 
hand, or in tome way to the prosecutor unknown, obstruct the respira- 
tion of the said child, and did suffocate or strangle said child, [or did, 



196 CASES BEFORE THE HIGH COURT 

No. 38. in some other way to the prosecutor unknown, maltreat the said cLild], 
^^ 0T by all which, or part thereof you did bereave the said child of life, 

Scolly. and the said child was thus murdered by you the said Mary Scally or 
High Court. Scolly, and you did thereafter throw or put the body of the said child 
J ^ e J*' into the said canal. 

loo J. 

Murder. On the motion of Solicitor- General the words, ' or 
€ did, in some other way to the prosecutor unknown, 
' maltreat the said child/ were deleted from the libel. 
The libel was then found relevant. 



David Ferguson, Suspender — Millar — A Mure. 

AGAINST 

David Thow, Respondent — E. &. Gordon. 

Suspension — Statute 4th Geo. IV. c. 34, Sect. 3 — Master akd 
Servant — Process — Penalty. — A farm-servant convicted in a 
Justice of the Peace Court of having deserted his master's service, 
was sentenced to imprisonment under the Act 4th Geo. IV. c. 34. 
The sentence suspended as being di scon form to the statute, in re- 
spect that hard labour had not also been imposed. 

No. 89. The suspender had been engaged as a farm-servant by 
J! Thow! the respondent from 28th October 1861 to 26th May 

High Court. 1862, being the old term of Whitsunday. Two days 
J ?862 80 ' after entering the service he absented himself ; and on 

Suspension, a petition by his master to the Justice of Peace Court of 
Forfarshire, narrating the relative section of the Masters 
and Servants Act, and setting forth the above facts, he 
was convicted of the offence charged, and sentenced to 
fourteen days' imprisonment. The sentence proceeded 
on a finding that he had contracted to serve the peti- 
tioner ' from the 28th day of October to Whitsunday 
next/ The main grounds of suspension ultimately pleaded 
were — (1.) That the duration of the contract specified 
in the petition (28th October to Whitsunday O.S.) was 
different from that found proved by the justice, and it 
was essential to the validity of the conviction that the 
same contract should be specified in the conviction as in 



AXD CIRCUIT COURTS OP JUSTICIARY. 197 

the petition ; (2.) that the sentence was illegal, being No. 59. 
disconforra to the relative provisions of the Statute, in *. tw 
respect that imprisonment without hard labour had been High Court, 
imposed on the prisoner. '^Sf* 

The section of the Statute founded on provides that suspension, 
if it shall appear that the party complained against has 
not fulfilled his contract, warrant may be granted ' for 
1 committing him to the house of correction or prison, 
' to remain and be held at hard labour for a reasonable 
' time, not exceeding three months.' 

The Court repelled the first objection, holding that 
even if the terms specified in the petition and sentence 
respectively had been different, which did not appear, 
it was enough to bring the case within the provisions of 
the Statute that a subsisting contract for a certain term 
of service had been proved, and that desertion had 
taken place long before its fulfilment. 

As to the second objection — 

The Lord Justice-General said — I think this objec- 
tion ought to be sustained. It appears to me, that the 
enactment in the clause referred to, is not complete till 
you come to the provision regarding hard labour. It is 
nogood answer, that this particular prisoner has no reason 
to complain of the non-fulfilment of that provision. The 
duty of the Justices is to walk according to the statute, 
which imposes one kind of punishment, and does not 
leave it open to them to dispense with the hard labour. 
This sentence not having been in conformity with the 
statute, must therefore be suspended. 

Lord Neaves. — I concur. I think it is of the essence 
of the imprisonment under the statute that it is to be 
accompanied with hard labour. The statute has in 
view the benefit of working men, and it is of vital 
importance to them that the term of imprisonment 
should be short. It is therefore not to exceed three 
months. But it is of equal importance that their 
habits of industry and their bodily strength should be 
kept up while they are in prison, and therefore there is 



198 CASES BEFORE THE HIGH COURT 

^No s§. th e provision, that while there, they are to be held to 

»» Thow. hard labour. If that provision were alternative, there 

HighCoort. would be a temptation to Justices to dilute the charac- 

1862. ter of the imprisonment by omitting the hard labour, 

Suspension' and extending the term of imprisonment, consequences 

of which would be much worse for those subjected to it. 

Lord Jerviswoode concurred. 

The sentence was therefore suspended, as disconform 
to the Statute. In consideration that the respondent 
had been put to unnecessary expense in resisting pleas 
that were not sustained, the suspender was allowed only 
the expenses of printing the bill of suspension and his 
additional plea in law. 

J. Nisbst, S.S.C.— J. Webster, S.S.C.— Agents. 



James Minty, Suspender — J. C. Smith. 

AGAINST 

John Symon, Respondent — A. 11. Clark — W. M. Thomson. 

Suspension — Statute 13th and 14th Vict. c. 33 (General Police 
Act, Sects. 337 and 361) — Fine — Imprisonment. — Suspension of 
a Police Court sentence, imposing a fine for an assault, and decern- 
ing that, failing ' immediate payment 1 thereof, the offender should 
be imprisoned for six days, was sought on the ground that the sen- 
tence was in violation of sections 337 and 361 of the General Police 
Act, which only authorize the Magistrates to grant warrant for im- 
prisonment ( until such penalty be paid. 7 — Held, That neither of 
these sections covered the case, but that the sentence was compe- 
tent under section 345 of the Statute — Suspension refused. 

No. 40. The suspender was a dealer in stoneware in Macduff, 
i». symon. and sought suspension of a sentence of the Police Ma- 
High Court, gistrates of that burgh on various grounds, alleging that 

Jl i862 30 " ^ey had convicted him of assault without evidence, and 
Suspension, were actuated by malice, &c. The ground to which the 
Court attached most importance was thus set forth : 

The alleged magistrates pronounced the following sentence: — 
4 Macduff, 2d May 1862. — The Judges find the complaint relevant 
1 and proven, and therefore fine and amerciate the said James Minty in 
* the sum of five shillings, and failing immediate payment thereof, ordain 



AND CIRCUIT COURTS OP JUSTICIARY. 199 

1 and decern the said James Minty to be imprisoned in the prison No. 40. 
4 of Banff, for the period of six days from this date, and on expiry f ^"^ 

4 thereof ordain him to be set at liberty, and for that purpose, grant 

4 warrant to constables of Court,' &c. This sentence was illegal and at June 30, 
variance with sections 337 and 361 of the General Police Act, as after I862 - 
quoted, 1 because its terms were such as could or did not admit of the Suspension, 
liberation of the complainer from prison during the period of imprison- 
ment prescribed, unless immediate payment of the fine was made so 
soon as the sentence was pronounced, whereas the Magistrates were 
only entitled, by the said sections of the Act, to pronounce a warrant 
4 for imprisoning him until such damages or penalty and expenses 
4 shall be paid.' 

The Court held that neither of the sections cited 
covered the case, in respect that a fine for assault is not 
a pecuniary penalty of the nature therein referred to ; 
but that the sentence was competent under the common 
law jurisdiction conferred on the Magistrates by the 
345th section of the Statute. 

The reasons of suspension were therefore refused. 

J. O. Macqusen — Alex. Morrison, S.S.C. — Agents. 

1 Section 337 of the Statute enacts, inter alia^ — 4 It shall be lawful 
4 to such Magistrate or Sheriff to proceed to the hearing of the com- 
4 plaint, and upon proof either by the confession or admission of the 
4 party complained against, or upon the oath of one credible witness, 
4 or more, and without any written pleadings or record of evidence, to 
4 convict or give judgment against the party complained against, and 
4 thereupon to decree, adjudge, and sentence him to pay the damages 
4 or penalty which have arisen or been incurred ; and the expenses 
4 attending the proceedings, and to grant a warrant for imprisoning 
4 him until such damages or penalty and expenses shall be paid. 9 

Section 361 enacts, that—- 4 In case any pecuniary penalty authorized 
4 by this Act shall not be immediately paid or consigned in manner 
4 after mentioned, it shall be lawful to sentence the person found liable 
( in the same to be imprisoned till such penalty be paid, but in no case 
4 shall the period of imprisonment exceed thirty days.' 

Section 345 provides, that — 4 The Magistrates of Police of a burgh 
* under this Act, or any one or more of such Magistrates, shall have 
1 jurisdiction in all matters arising in such burgh under this Act, and 
1 shall have all such and the like jurisdiction within such burgh, as 
1 any Magistrate of a Royal Burgh, or any Dean of Guild of a Royal 
1 Burgh has by the law of Scotland within the Royal Burgh in and 
1 for which he acts as such Magistrate or Dean of Guild/ 



200 CASES BEFORE THE HIGH COURT 

John Snaddon, Suspender — E. S. Gordon— Nevay. 

AGAINST 

William Spence, Respondent — A. R. Clark. 

Suspension — Statute 2d and 3d Will. IV. c. 68 (Day-Trespass Act), 
— Quarter Sessions — Imprisonment in Default of Payment of 
Expenses. — Circumstances in which suspension of a conviction un- 
der the Day-Trespass Act was refused, and — Held, (1.) That the 
Justices in Quarter Sessions have no authority to award imprison- 
ment as a means of enforcing payment of the expenses of an appeal 
from a sentence by the Justices in petty sessions. (2.) That the 
portion of the judgment of the Quarter Sessions containing such an 
award was separable from, and might be omitted from view, so as to 
leave the affirmance by the Quarter Sessions of the conviction by 
the Justices, and a conviction itself, to remain good. The award of 
imprisonment, however, set aside. 

No. 4i. This was a suspension of a conviction obtained under 
fgffSL the Act 2d and 3d Will IV. c. 68 (the Day-Trespass 
High Court. Act), in the Justice of Peace Court of Clackmannanshire, 
^862°' an d of a judgment of the Quarter Sessions, by which the 
Suspension, conviction was affirmed, and the appeal against it dis- 
missed. The complaint in which the proceedings under 
suspension originated was presented by the respondent 
as Procurator-fiscal to the Justices of the Peace of 
Clackmannanshire, and charged the suspender, a sur- 
faceman in the employment of the Stirling and Dun- 
fermline Bailway Company, with the offence mentioned 
in section 1 of the Statute, inasmuch as he had com- 
mitted a trespass in pursuit of game on the lands of the 
railway company, in the daytime, on 4th November 
1861. The original sentence adjudged the offender to 
pay a penalty of 7s. 6d., with expenses, and in default 
of payment within four days to be imprisoned for three 
weeks, unless these sums should be sooner paid. The 
Justices in Quarter . Sessions affirmed that conviction, 
dismissed the appeal, and adjudged the offender 



AND CIRCUIT COURTS OF JUSTICIARY. 201 

to pay the expenses of the appeal, and in default of gjjjjj^ 
payment thereof, along with the sums contained in the ». spence . 
original conviction, within four days, to be imprisoned H jJ^y t 
in the prison of Alloa for three weeks, unless said award >862. " 
of expenses should be sooner paid. Suspension. 

The leading reasons of suspension were — (1.) By the 
2d section of the Statute, convictions were only compe- 
tent at the instance of the owner or occupier of the 
land in which the trespass took place, or of the Procu- 
rator-fiscal of the county, while here the complaint was 
at the instance of the respondent as Procurator- fiscal ; 
(2.) in the complaint the suspender was not relevantly 
charged with the statutory offence ; it was merely said 
that he became liable in the penalty or forfeiture pro- 
vided by the Statute, as the punishment for the com- 
mission of such offence ; (3.) the limits of the statutory 
daytime, as specified in section 3 of the Statute, were 
not set forth in the complaint ; (4.) the proprietors of 
the land upon which the alleged trespass took place 
were not mentioned in the complaint ; (5.) the oath 
upon which the prosecution proceeded was not in con- 
formity with the requirements of the Statute ; (6.) the 
suspender was not guilty of trespass under the Statute, 
inasmuch as he had entered and was upon the line of 
the railway in the discharge of his duties as surfaceman 
at the time when the trespass was alleged to have been 
committed ; (7.) the prosecution and conviction were 
unwarranted under the Statute, inasmuch as the party 
upon whose oath the suspender had been charged with 
the statutory offence was not the owner nor the occupier 
of the land in question, nor in the service of either, and 
could not therefore legally apprehend him, or interfere 
with him while on the land ; (8) the conviction did not 
specify the particular day on which the alleged trespass 
was committed ; (9.) the judgment of the Quarter 
Sessions was wrongous and illegal, in respect that, be- 
sides ordering and adjudging that the suspender should 
be dealt with and punished according to the conviction, 



202 CASES BEFORE THE HIGH COURT 

s^dd 1 " ** ^ urt ^ ier ordered and adjudged that he should be un- 
it. Spence. prisoned for three weeks, failing payment of the ex- 
"tejj expenses of the appeal within four days. This was in 
1862.' violation of the Statute, particularly section 14th, 
8uspenaon. which provides ' that the Court at such sessions shall 
' hear and determine the matter of the appeal, and 
' shall make such order therein, with or without cofittf 
1 to either party, as to the Court shall seem meet, and 
' in case of the dismissal of the appeal, or the affirmance 
' of the conviction, shall order and adjudge the offender 
' to be dealt with and punished according to the con vie- 
' tion, and to pay such costs as shall be awarded, and 
' shall, if necessary, grant warrant for enforcing such 
'judgment in common form.' 

Answered for respondent — The designation ' procura- 
' tor-fiscal for the county' was intended by the Legisla- 
ture to point out the procurator-fiscal to the Justices of 
the Peace, and prosecutions under the Act in Scotland 
had been invariably followed forth by that official, and 
by no other procurator-fiscal. The respondent had de- 
signed himself in the complaint 'Procurator-fiscal of 
€ Court for the public interest/ which was his proper 
designation in such a prosecution, and in accordance 
with Sheriff-Court and Justice of Peace Court practice. 
The allegations of the suspender were for the most part 
denied. In regard to art 8, the day in question was 
mentioned in the complaint, and the conviction was 
written on the same sheet of paper, bearing that the 
suspender had been found guilty of committing the 
offence ' day within mentioned/ Reference was made 
to section 12 of the statute, which provides ' that it shall 
' not be necessary, in any proceedings against any person 
€ under this Act, to negative by evidence, any license 
' consent, authority, or other matter of exception or de- 
' fence, but that the party seeking to avail himself of any 
' such license, consent, authority, or other matter of ex- 
' ception or defence, shall be bound to prove the same ;' 
and to section 15, which provides, 'that no conviction 



AND CIRCUIT COURTS OF JUSTICIARY. 203 

1 in pursuance of this Act, or judgment given on appeal **°\* 1 - 
' therefrom, shall be quashed for want of form, or be re- •. Spence. 
' moved by advocation, suspension, or reduction, into High court. 
' any superior court of law ; and that no warrant of 1862. " 
' commitment shall be held void by reason of any de- Suspeniioii. 
' feet therein, provided it be therein alleged that it is 
'founded on a conviction, and there be a good and 
1 valid conviction.' In regard to art 9, the sentence of 
imprisoment was not an additional punishment, but 
merely a repetition of the sentence appealed against, 
and was warranted by the 14th section of the statute. 

The Court repelled all the reasons of suspension ex- 
cept the last, in regard to which they held that the 
Justices sitting in Quarter Sessions had no power to 
award imprisonment as a means of enforcing payment 
of the expenses of the appeal. They had the power to 
award additional expenses, and to give decree for them, 
and the Statute provided for caution being found ; but 
they had no power to add to the conditions authorized 
by the Statute. That incompetency did not, however, 
vitiate the whole judgment and conviction. The affirm- 
ance of the original sentence was one thing, and the in- 
competent addition another, and separable from it. 
The following interlocutor was pronounced : — 
' ZOth June 1862. — Pass the bill, so far as relates to 
' that part of the judgment of the Justices in the Court 
1 of Quarter Sessions, by which the Justices adjudge the 
' suspender to be imprisoned for the period of three 
1 weeks in default of the sum of £2 9s. of expenses 
' thereby found due not being paid within four days, and 
' suspend that part of the judgment accordingly : Quoad 
1 ultra repel the other reasons of suspension : Find no 
' expenses due to either party.' 

HEMDKftftOM & Doll ALDSOIf, S.S.C.— J. & A. PbDDII, W.S. — AgMlte. 



204 



CASES BEFORE THE HIGH COURT 



NORTH CIRCUIT. 



Sept. 29. 
1862. 



Autumn 1862. 

PERTH. 

Judges — The Lord Justice-Clerk and Lord Jerviswoode. 

Her Majesty's Advocate — A. MoncrieffA.D. 

against 

Robert Lonie — J. C. Smith. 

Culpable Homicide — Culpable and Furious Driving — Indictment 
— Relevancy. — Opinion that it is contrary to sound principle to 
charge in the same major proposition Cnpable Homicide and its 
equivalent, 4 Culpable and Furious Driving, whereby any of the 
1 lieges are bereaved of life/ 

Robert Lonle was indicted and accused — 



No. 42. 
Robert. 
Lonie. 

Perth. 

Sept. 29. 

1862. 

Culpable 



That albeit, by the laws of this and of every other well- 
governed realm, Culpable Homicide; As also Culpable and Reck- 
less or Furious Driving, whereby any of the lieges are bereaved of 
life, especially when committed by a person who has been previously 
convicted of culpable and reckless or furious driving, are crimes of an 
Honueide nemous nature, and severely punishable: yet true it is and op 
&c. verity, that you the said Robert Lonie are guilty of the said crime 
first above libelled, or of the crime second above libelled, aggra- 
vated as aforesaid, actor, or art and part: in so far as, on the 
27th day of August 1862, or on one or other of the days of 
that month, or of July immediately preceding, on or near the 
public road leading betwixt Saint Andrews and Anstruther, in the 
shire of Fife, and at or near a part of said road at or near the road or 
entrance from said public road to Balmungo House, near Saint Andrews 
aforesaid, you the said Robert Lonie being the driver or in charge of 
a cart or other vehicle drawn by one horse, and having desired James 
Docherty, junior, son of, and then residing with, James Docherty, 
labourer, in Couttie's Wynd of Dundee, to fasten one of the draughts 
or other parts of the harness on said horse to said cart, or the said 
James Docherty, junior, being engaged in so doing, or having done so, 
you did, time and place above libelled, culpably and recklessly or 
furiously drive the said horse and cart, or other vehicle, and in conse- 
quence thereof the said horse and cart or other vehicle, or one or other 
of them, came in contact with the person of the said James Docherty, 



AND CIRCUIT COURTS OF JUSTICIARY. 205 

junior, whereby he was thrown or knocked violently to the ground, No. 42. 

and one of the wheels of the said cart or other vehicle passed over ^onTJ* 

him; by all which, or part thereof, the said James Docherty, — 

junior, was mortally injured, and in consequence died, on or about the Sept. 29. 

6th day of September 1862, and was thus culpably killed by you, or 1862 - 

bereaved of life through the culpable and reckless or furious driving Culpable 

of you the said Robert Lonie, as aforesaid. Homicide, 

Counsel for the panel objected to the double charge 
in the major, on the ground that culpable and furious 
driving, by which some one was bereaved of life, being 
nothing else than culpable homicide, it was incompetent 
to charge the same crime twice over, by the transparent 
device of describing it as a periphrasis, for the purpose 
of proving a previous conviction. If it were competent, 
then it would be equally competent to charge robbery 
as theft by violence, in order to take advantage of pre- 
vious convictions for theft. 

The Advocate Depute replied, and cited authorities 
to show that the point was settled. 

The Lord-Justice-Clerk said, that he considered the 
authorities conclusive against the objection, but that if 
he had been to decide it on principle, he would have 
sustained it. 

Lord Jerviswoode was of the same opinion. 

The case went to trial, and the evidence showed that 
the deceased was riding on the top of the cart with the 
accused ; that the cart was trotting down hill ; that the 
deceased, either at the request of the accused or of his 
own accord, went down, and, while the horse was still 
trotting, endeavoured to put on the draught ; that he 
stumbled and fell, and that the cart ran over him and 
inflicted mortal injury, tearing several of his ribs from 
the back-bone ; that the boy, before he died, said he 
had been sent down by the accused, but that no blame 
was attachable to him. No attempt was made to prove 
the previous conviction for furious driving. 

Lord Jerviswoode directed the jury that if the pri- 
soner merely permitted the prisoner to go down to try 



200 OASES BEFORE THE HIOB COURT 

to put on the draught, he was guilty of no fault, but 
that if he did desire or order him to go down^and thus 
recklessly put his life in peril, he was guilty of a culpa 
which, in the circumstances, warranted a verdict of 
guilty of culpable homicide. 

The jury returned a verdict of 'Not guilty/ 



Hkb Majesty's Advocate — A. MoncrieffA. D. 

AGAINST 

Elizabeth Duncan anp Ann Brechin — W. A. Brown. 

Child- Murder — Separation op Trials — Indictment — Relevancy. 
— In an indictment charging Murder against two panels, and Con- 
cealment of Pregnancy alternatively against one of them — Held, (1.) 
competent, on the motion of the prisoner's counsel, to separate the 
trials to the extent of dealing with each charge separately ; (2.) 
That neglect to tie the umbilical cord formed a relevant charge of 
Child-Murder as part of the modus generally set forth. 

No 43 Elizabeth Duncan and Ann Brechin were charged 
SSf ™ th child-murder— 

and Ann 

Brechin. j N 80 pAR AB vou ^ ^ g^ Elizabeth Duncan, having, on a day be- 

_f ert *J- twixt the 21st day of July and 1st day of August 1862, been delivered 
1862. ' of a living female child, you, the said Elizabeth Duncan and Ann 
Chjjjjjr" Brechin, did, both and each or one or other of you, immediately, or 

Murder, soon after the birth of said child, then and there wickedly and feloni- 
ously attack and assault the said child, and did tie a ligature or ligatures 
round the neck of the said child, and did tightly compress the throat 
of the said child, and obstruct its breathing, and did fail and neglect to 
tie the umbilical cord of said child, in consequence of all which, or 
part thereof, etc 

There was an alternative charge of concealment of 
pregnancy against Elizabeth Duncan. 

Counsel for the panel Duncan moved the Court to try 
the two charges separately. It was maintained that 
the Crown would fail to establish the charge of child* 
murder against both prisoners, and it was proposed to 
adduce the panel Brechin (the mother of the ptnel 



Murder. 



AND CIRCUIT COURTS OF JU8TICIAKY. 207 

Duncan), to prove a disclosure, with the view of meeting **«. J* 

the alternative charge of concealment of pregnancy. Duncan 

The motion was granted, and the prosecutor pro- bUcWd. 

ceeded with the charge of child-murder against both Perth. 

° ° Sept 29. 

prisoners. iW 

For the panel Duncan the relevancy of the indictment ^chiid- 
was objected to, in respect that mere failure and neglect 
to tie the umbilical cord was not of itself an act that 
could be made the foundation of a criminal charge, un- 
less the indictment set forth such failure and neglect 
as deliberate and wilful. They were not here so set 
forth. Failure and neglect to tie the umbilical cord, 
when wilful, was known in law as a specific and techni- 
cal cause of death, and ought to have been so libelled. 

The Court held the narrative in the indictment to 
amount to one modus only, and that the words ' wickedly 
1 and feloniously* covered its different parts. The rele- 
vancy of the indictment was accordingly sustained. 

From the medical evidence it appeared that the child 
had been born alive, and that it had been disinterred 
after it had been buried perhaps ten days. Putrefaction 
had taken place to a considerable extent. Bound the 
neck of the child three tightly tied ligatures (one over 
the right ear) were found. There was no ecchymosis of 
the parts near the ligatures. On incision into the 
neck the medical men found no ecchymosis. The um- 
bilical cord was separated at about one inch and a half 
from the navel. The medical men thought it had more 
probably been lacerated than cut. The medical men 
admitted that it was perhaps the most bloodless body 
they had ever seen. In their report, notwithstanding, 
they draw the inference that the child had died partly 
from suspended respiration, caused by the application of 
the ligatures, partly from loss of blood through the 
umbilical cord. 

In their declaration the prisoners inculpated one 
another. Duncan said that at the birth of the child 
she became nearly unconscious, and that her mother, 



208 



CASES BEFORE THE HIGH COURT 



rai*b0th W ^° was P resen * a * the birth, took charge of the child. 
Duncan Brechin denied being present at the birth at all, and no 

On the whole case the 



and Ann 

Brechin, proof of this was adduced. 



Perth. 

Sept. 29. 

1862. 

Child- 
Murder. 



Lord Justice Clerk directed the jury that, whatever 
construction they might put upon the medical evidence, 
even if they were satisfied that a murder had been com- 
mitted, there was no proof bringing it home absolutely 
to either of the prisoners. It might not be very clear 
which of them committed the murder, and in these 
circumstances it was their duty, whatever the miscarri- 
age of justice, to acquit both. 

Both prisoners were acquited of the charge of child- 
murder, and the Advocate-Depute did not press the 
charge of concealment against the prisoner Duncan. 



Her Majesty's Advocate — A. Moncrieff A.D. 



AGAINST 



Jakes Henderson — W. A. Brown. 



No. 44. 

James 

Henderson. 

Perth. 

Sept 30, 

1862. 

Fraudulent 
Conceal- 
ment of 

Property. 



Fraudulent Concealment op Property — Indictment — Relevancy 
— Perjury — Sentence — Held, (1.) That it is not necessary, in tbe 
minor of an indictment charging fraudulent concealment of property 
by a Bankrupt, to set forth the names of creditors who have been 
defrauded, if the indictment set forth that a trustee had been ap- 
pointed on the bankrupt's estate. (2.) That it is not necessary to 
constitute a relative charge of perjury that the facts, which the pro- 
secutor sets forth and intends to prove against the panel, should be 
a direct logical contradiction of the bankrupt's deposition upon oath. 
(3.) A panel found guilty under the above charge sentenced to 
twelve months' imprisonment. 

Jambs Henderson was indicted and accused — 

That albeit, by the laws of this and of every other well-governed 
realm, the Wicked and Fraudulent Concealment or Putting Away, 
Sale or Disposal of his Property or Effects, by a Bankrupt, for the 
purpose of Defrauding his Creditors ; as also, Perjury, are crimes of 



AND CIRCUIT COURTS OP JUSTICIARY. 209 



in heinous nature, and severely punishable : Yet true it is and of No. 44. 

James 
Henderson. 



verity, that you the said James Henderson are guilty of the said James 



crimes, or of one or other of them, actor, or art and part : In so fab 
as, you the said James Henderson having, for some time prior to 26th Sept 30. 
December 1861, been in the occupation of lands and premises in and 1862 * 
■boat Falkland, in the parish of Falkland, and shire of Fife, and you Fraudulent 
having, prior to the said 26 th December 1861, become insolvent, and meDto f 
your estates having been sequestrated by the Sheriff of Fifeshire on Property, 
the said 26th day of December 1861, under the provisions of the 
' Bankruptcy (Scotland) Act, 1856/ and Donald Hay, farina manu- 
facturer in Cupar, now or lately residing at Hiltarvit near Cupar, in 
the county of Fife, having, on or about the 7 th day of January 1862, 
been elected trustee on your said estates, and having been, by a de- 
liverance of the said Sheriff, dated 10th January 1862, confirmed as 
trustee in the said sequestration ; and you the said James Henderson 
having formed a fraudulent design to conceal, sell, dispose of or put 
away, property, or effects sequestrated as aforesaid, for the purpose of 
appropriating the same to your own use, and depriving your creditors 
thereof or otherwise defrauding your lawful creditors, or the said 
Donald Hay as trustee foresaid, you did (1.) in pursuance of said 
fraudulent design, on the 12th day of March 1862, or on one or other 
of the days of the month, or of February immediately preceding, or of 
April following, wickedly, feloniously, and fraudulently carry off, con- 
ceal, sell, dispose of, or clandestinely put away, or cause or procure to 
be carried of£ concealed, sold, disposed of, or clandestinely put away, 
Two Cows and a Horse, forming part of your sequestrated estates be- 
longing to your lawful creditors, or to the said Donald Hay as trustee 
foresaid ; and this you did in the knowledge that the effects above 
libelled formed part of your sequestrated estates, and with the wicked 
and felonious intention of defrauding your lawful creditors, or the said 
Donald Hay as trustee foresaid, by carrying or sending off, or causing 
or procuring to be carried or sent off, the property above libelled, from 
the premises then occupied by you at Falkland aforesaid, to Edinburgh, 
sod by there selling or disposing of the two cows above libelled, or 
causing or procuring the same to be sold by Robert Forgie, cattle and 
sheep salesman, now or lately residing in Lauriston Place, Edinburgh, 
to some person or persons to the prosecutor unknown, and by selling 
or disposing of the horse above libelled, or causing or procuring the 
same to be sold, in or near Edinburgh, to some person or persons to 
the prosecutor unknown, and the prices obtained for the said two cows 
and horse were received and appropriated by you the said James Hen* 
derson to your own uses and purposes, whereby your lawful creditors, 
or the said Donald Hay as trustee foresaid, were defrauded and de- 
prived of the said two cows and horse, or of the price or value thereof. 

VOL. IV. O 



210 n CASES BEFORE THE HK»H COURT 

No. 44. Then followed the specification of four similar charges. 
Hendenon. The sixth charge was thus set forth : — 

Perth. 

Sept 30. Further, you the said James Henderson having, on or about the 1st 
day of April 1862, been brought before Robert Sutherland Taylor, 



^nc^lT' Esquire, Sheriff-substitute of the shire of Fife, within the Justice of 
ment of Peace Court-room, County Buildings, Cupar, in the county of Fife, to 

Property, j^ examme <i on oa th m regard to your affairs, in terms of the 4 Bank- 
' ruptcy (Scotland) Act, 1856/ and having been solemnly sworn by 
the said Robert Sutherland Taylor to speak the truth, you did, time 
and place last above libelled, wickedly, knowingly, wilfully, falsely, 
feloniously, and deliberately, swear to facts and circumstances contrary 
to truth, knowing the same to be so ; and, in particular, you the said 
James Henderson did, time and place last above libelled, at your said 
examination, wickedly, knowingly, wilfully, falsely, feloniously, and 
deliberately depone, inter alia, in the following words or to the follow- 
ing effect, with reference to the effects above libelled, or part thereof, 
which words were taken down at the time, and subscribed by you and 
by the said Robert Sutherland Taylor : — 4 Since my sequestration, I 
4 took a pony which belonged to me to £din r ., and sold it there three 
4 weeks ago. I also took there & sold two cows. I got £9 some 
4 shillings for the pony; I got £11, less about 6s. of commission, for 
' the two cows. I sold them because I had no meat for them, & had 
' to get means to support my family. The salesman was Mr. Forgie, 
4 106 Lauriston Place, Edinb*. I sold the pony in the Grassmarket to 
4 a stranger. The money was expended in paying meat for the pony 
( & three cows for the previous four months, or repaying loans I had got 
4 to purchase their food. I had borrowed for that purpose about £7 or 
* £8, from Mr. John Kirkmichael, contractor, Perth, after my sequestra- 
4 tion. I repaid him that loan since I came from Edinburgh. # * * 
4 I repaid Mr. Doig of Perth about ten pounds, which I was due him 
4 for said pony. * # * I can't tell where the cart & two ploughs 
4 are. I never handled them since the Inventory was taken, & I did 
4 not tell any one to take them away. I know nothing about twelve 
4 hair-bottomed chairs & a mahogany table which are in the Inventory. 
4 These belonged to my wife. I did not take them away, or remove 
4 them to Perth or anywhere else, since my sequestration. My wife 
4 sent them away or sold them, but I don't know what became of 
4 them. I did not get money for them, or any value. * * * No 
4 articles were bought back at the roup for me or my wife. And w Tay- 
4 lor bought some things which he has allowed to remain in my house. 
4 These are not my property. Taylor paid for them. I did not give 
4 Andrew Taylor the money to pay for them. He did not tell me that 
4 he had bought them back for me or my wife. My wife did not give 
4 him money either ;' whereas the truth is, and it will be proved, that 



AND 0IBW1T COURTS OF JUSTICIARY. 211 

the fecte sworn to by you the said J*mea Henderson as above libelled, ^ ^ 
or part thereof wore false, and were known by yon at the time of your James 

fliiminition upon oath to be bo, inasmuch as the truth is, and you well 

knew* and it will be proved, thjtf you had not paid seven or eight gepfso, 
pounds, aa stated in your said deposition, to Mr John Kirkmichael, i«62. 
contractor, Perth, meaning thereby John Cannichael, contractor, now Fraudulent' 
or lately residing in South Street, Perth, but that you had applied the Conceal- 
money received by the sale of the said pony and two cows, to your own p^^rty. 
me, and that yon had not repaid £10 to Mr. Doig of Perth, meaning 
thereby Alexander Doig, cattle-dealer, now or lately residing in New 
Scone, in the parish of Scone, and shire of Perth, but had appropriated 
the money received by you as aforesaid to your own uses and purpose, 
and had not paid the said Alexander Doig any sum of money ; and 
the facta sworn to by you the said James, Henderson in regard to the 
art referred to in your deposition above libelled, being the cart re- 
ferred to in the charge fifth above libelled, were false, and were known 
by jou at the time of your said examination upon oath to be so, inasmuch 
as the truth is, and you well knew, and it will be proved, that the said 
cart had been taken away from the said premises occupied by you in 
or near, Falkland aforesaid, on or about the said 27th or 28th day of 
March 1862, by you the said James Henderson, and that you had 
taken the same to the premises in or near Strathmiglo aforesaid, then 
and now or lately occupied by the said Joseph Wishart, or to the pre- 
mises ra or near Strathmiglo aforesaid then and now or lately occupied 
by the said John Wishart ; and it will be proved, that the facts sworn 
t° by yon, in regard to the ploughs referred to in your deposition above 
libelled, being the ploughs referred to in the charge second above libel- 
led, were false, and were known by you at the time of your said exa- 
mination upon oath to be so, inasmuch as the truth is, and you well 
knew, and it wiU be proved^ that the said ploughs had been taken 
away from your said premises on or about the time libelled in said 
second charge, and that the same had been carried off and disposed of 
in the manner mentioned in said second charge ; and the truth is, and 
it will be proved, that the facts sworn to by you as before narrated, in 
regard to the chairs and table referred to in your deposition above 
libelled, being the chairs referred to in the charge third above libelled, 
were false, and were known by you at the time of your said examina- 
tion upon oath to be so, inasmuch as the truth is, and you well knew, 
that the said chairs had been taken away by you from said premises 
then occupied by you in or near Falkland aforesaid, and disposed 
of by you, on or about the time and in the manner libelled in said 
charge third above libelled ; and it will be proved that the facts sworn 
*° by you the said James Henderson in regard to the purchase of 
articles at the roup, qud the payment thereof, referred to in your depo- 
sition abpy:e libelled, were false, and were known by you at the time of 



212 CASES BEFORE THE HIOB COURT 

No. 44. your said examination upon oath to be so, inasmuch as the troth is, 

Henderson anc * f orx we ^ knew, *^ at y ou had desired or employed Andrew Taylor, 

— " farmer, in or near Falkland, in the parish of Falkland aforesaid, being 

Sept 30. the Andrew Taylor to whom yon refer in your deposition as abore 

1862 * libelled, to purchase articles for you at the roup of your said seques- 

Fnudulent trated effects, or part thereof, by the said Donald Hay, as trustee on 

mentof J our sa ^ 8e< l ue8trate ^ estates, which took place at Falkland on or 

Property, about the 28th day of March 1862, being the roup referred to in your 

deposition above libelled, and that you had given, or that your wife 

in your knowledge had given, the said Andrew Taylor money to pay 

for said articles purchased as aforesaid. 

W. A. Brown, for the panel, objected to the relevancy 
of the indictment — (1.) There was no proper specifica- 
tion in the major proposition of the creditors alleged to 
have been defrauded, in so far as the creditors were not 
named — Dick and Laurie, July 16, 1832, Scottish Jurist, 
vol. iv. p. 594 ; John ORetily, High Court, July 14, 
1836, Swinton, vol. i. p. 256. (2.) That there was no 
relevant charge of perjury, as the facts of which the 
prosecutor gave notice to the panel that he was to prove 
against him did not constitute a complete and exact 
negative of the bankrupt's deposition upon oath. In 
the minor applicable to the charge of perjury, there was 
no such contradiction. The bankrupt, for example, de- 
poned upon oath, € I repaid Mr. Doig of Perth about 
' £10 which I was due to him for said pony ;' the pro- 
position which the prosecutor gave notice that he would 
prove against the panel was, * Whereas the truth is, that 
' it will be proved against you that you had not repaid 
' £10 to Mr. Doig, Perth.' The same want of corres- 
pondence applied to the other parts of the bankrupt's 
deposition. 

A. Moncrieff, for the Crown, replied — The specifica- 
tion of the names of creditors alleged to have been de- 
frauded was unnecessary, in respect there had been a 
trustee appointed on the bankrupt's sequestrated estate, 
who represented the whole body of creditors. In re- 
gard to the charge of perjury, he maintained that the 
propositions in the indictment did not instruct the want 



AND CIRCUIT COURTS OF JUSTICIARY. 213 

of correspondence which was asserted by the prisoner's n°"- 

COUIlSel. Hendoraoo. 

The Court repelled the objections, and the case went Perth - 
to trial. The panel was found guilty, and sentenced to 1862/ 



twelve months' imprisonment. Fraudulent 

r Conceal- 

ment of 
Property. 



SOUTH CIRCUIT. 

Judge — Lord Cowan. 
Her Majesty's Advocate — A. B. Shand, A.D. 

AGAINST 

William Cowan. — Cowan. 

Forgery — Falsehood, Fraud, and Wilful Imposition — Indict- 
ment — Relet ancy. — Terms of an indictment which held irrelevant 
and insufficient to sustain a cumulative charge of falsehood, fraud, 
and wilful imposition. 

The offences libelled in this case along with forgery, No. 45. 
were set forth in the major proposition as follows : — cowan? 



Ayr. 

' Forgery, as also the wickedly and feloniously using and uttering °^} m 

1 as genuine any letter, or other obligatory writing, having thereon 

1 any forged subscription, knowing the same to be forged ; as also u^* 79 
* falsehood, fraud, and wilful imposition/ 

The statement in the minor proposition set forth that 
the panel had written, or caused to be written, certain 
letters of guarantee in his own favour, and forged, or 
caused to be forged, and adhibited to them, the sub- 
scription of another person, and used and uttered them 
as genuine, knowing them to be forged, by delivering 
them as genuine to certain individuals who were ' in- 
' duoed, in consequence of the false and fraudulent re- 



214 CASES BEFORE THE HIGH COURT 

wiiikm * presentations contained in said letter of guarantee/ &e., 
Cowan - to deliver to the panel certain goods, which he 'did 
o^Ti. € fraudulently receive delivery of, and appropriate/ &c 
1862 - Cowan, for the panel, objected that the statements 
F ^5 ery ' in the minor were not relevant, and were insufficient to 
support the charge of falsehood, fraud, and wilful impo- 
sition, as a separate offence from that of forgery. The 
acts specified were merely the completion of the first 
libelled offence. 

The Court sustained the objection. 
The panel pleaded Not guilty, and after evidence had 
been led, was found guilty, and sentenced to twelve 
months' imprisonment. 



Her Majesty's Advocate. — A. B. Shand A.D. 

AGAINST 

William M'Creadie — Jtfoefeon. 

Evidence — Relevancy — Fire-raising — Under an indictment, char, 
ging the panel with —(1.) wilful fire-raising, and (2.) wilfully setting 
fire to goods, his own property, with the felonious intent to defraud 
an insurance company by recovering the amount of insurance above 
their value, on the false pretence that the articles destroyed were 
really of the value for which they were insured, counsel for the 
panel objected to evidence being led to prove the removal of certain 
articles from the premises before the fire, as being an attempt to 
prove a different crime from that libelled. Objection reptlUd. 

"2:* 6 ' William M'Ckbadib was indicted and accused — 

William 

M'fnta Aim 

That albeit, by the laws of this and of every other well-governed 

0^\ realm, Wilful Fire-raising ; As also the Wickedly, Wilfully, and 
1862. Feloniously Setting Fire to any Stock- in-Trade, Goods, Furniture, 
Wilful and Effects, contained in any shop or house or other premises, with the 
Fixchimift- F e i 0n i 0U8 intent of Defrauding any Corporation or Company, or indi- 
vidual with whom an insurance of the same has been effected against 
damage by fire, are crimes of an heinous nature, and severely punish- 
able : Yet true it is and of verity, that you the said William 
M ( Creadie are guilty of the said crimes, or of one or other of them, 
actor, or art and part : In bo far as (1.) you the said William 



ing. 



AND CIWOUIT COURTS OP JUSTICIARY. 215 

iPCreadie being, time hereinafter libelled, tenant or occapant of No. 46. 
premises situated in or near High Street of Girvan, in the parish o^^clSS*. 

Girvan, and -shire of Ayr, and then and now or lately the property of — 

Matthew Morton, now or lately draper in or near Girvan aforesaid, Oct. 2. 
John Diekie, now or lately seedsman in or near Kilmarnock, and Hugh * 862 - 
Morton, now or lately seedsman in or near Kilmarnock, or of one or Wilful 
more of them, as trustees of the deceased William Morton, merchant in** 1 *" 
in Girvan aforesaid, or the property of the heirs of the said William 
Morton, part of which premises yon occupied as a dwelling-honse and 
store, and m part of which you carried on business, time hereinafter 
libelled, as a grocer and spirit-dealer, or in some other or similar 
capacity, under the name of William M*Creadie, or of John M'Creadie, 
or under the firm or title of John and William M'Creadie, or of John 
M'Creadie and Company, you the said William M'Creadie being the 
sole or only party interested in such business, and you the said 
William M'Creadie having deposited, disposed, or placed tacifer- 
matches, paper, tar-twine, patent fuel or fire-lighters, and oil, or one 
or more of theYn, or other combuBtible substances to the prosecutor un- 
known, on the floor around the inside or back of the counter, and in 
other places in the said shop or premises in which you carried on 
business as aforesaid, in order that fire might be the more readily 
communicated to Bald premises, you did, on the 25tb or 26th day of 
May 1862, or on one or other of the days of that month, or of April 
immediately preceding, or of June immediately following, wilfully, 
wickedly, and feloniously, set fire to the said shop or other premises, 
or part thereof, by applying a lighted match, or some other lighted or 
ignited substance to the prosecutor unknown, to other matches, or to 
paper, tar-twine, or patent fuel or fire-lighters, or other combustible 
materials in said shop or other premises, or in some other manner or 
by some other means to the prosecutor unknown ; and the fire thus set 
or applied did take effect, and did burn or destroy the said premises, 
and particularly the doors and windows, flooring and roof of said 
premises, and the counter, or part thereof, which were fixtures there- 
in, the property of the said Matthew Morton, John Dickie, and Hugh 
Morton, as trustees foresaid, or of one or more of them, or of the heirs 
ofthe said deceased William Morton : Likeab (£.) you the said William 
M'Creadie being tenant or occupant of the premises, or part thereof 
situated and belonging as aforesaid, and having, prior to and at the 
25th or 26th days of May 1862, carried on business therein as above 
libelled, and you having, on the 11th, 22d, or 27th day of November 
1861, in the name or under the firm or title of John and William 
M'Creadie, grocers and spirit-dealers, Girvan, or under some other or 
similar name or firm, effected an insurance against loss or damage by 
fire with the corporation or company carrying on business under the 
firm or designation of the Northern Assurance Company, or with 



216 CASES BEFORE THE HIGH COURT 

No. 46. James MacKenna, then and now or lately agent at Girvan aforesaid 
M'Creadie. ror M *d corporation or company, to the extent of £430 on stock-in- 
— t~ — trade, shop furniture, fixtures, and utensils, in said shop and store, and to 

Oct 2. the extent of £70 on household furniture, bed and table linen, wearing- 
__ 1862 ' apparel, plate, and printed books, in said dwelling-house, said articles 

Wilful being represented as being then in said premises and belonging to yon, 
ing. or in your possession, or as belonging to, or in the possession of, John 
and William M'Creadie foresaid, and which insurance was to continue 
in force for the period from the said 11th day of November 1861 to 
the 11th day of November, 1862 ; and you having, on or about the 
11th day of December 1861, paid the premium and duty or sums of 
money to said corporation or company, or to the said James 
MacKenna, due at said 11th day of November 1861, and obtained a 
policy of insurance under the said name or firm or title of John and 
* William M'Creadie, grocers and spirit-dealers, Girvan, but which was 
in reality for your own behoof; and the said insurance being at the 
time hereinafter libelled in force, and the said sums of £430 and £70 
being both and each or one or other of them beyond the value of the 
property respectively insured or intended to be insured thereby, or at 
least beyond the value of such insured property as was within the 
said premises at the time hereinafter libelled, and you the said William 
M'Creadie having deposited, disposed, or placed lucifer matches, paper, 
tar-twine, patent fuel or fire-lighters, and oil or other combustible sub- 
stances, on the floor around the inside or back of the counter, and in 
other places in the said shop or premises in which you carried on 
business as aforesaid, in order that fire might be the more readily com- 
municated to the stock-in-trade, utensils, household-furniture, and 
other articles within said shop, dwelling-house, and store, you did, on 
the 25th or 26th day of May 1862, or on one or other of the days of 
that mouth, or of April immediately preceding, or of June immedi- 
ately following, wilfully, wickedly and feloniously, set fire to the 
stock-in-trade, shop-furniture, fixtures, and utensils, and to the house- 
hold-furniture, bed and table-linen, wearing apparel, plate and printed 
books, or to part thereof, belonging to you, or said John and William 
M'Creadie, or then in your possession, and contained in said premises, 
and insured as aforesaid, by applying a lighted match or some other 
lighted or ignited substance to the prosecutor unknown, to other 
matches, or to paper, tar-twine, or patent fuel, or fire-lighters, or 
other combustible materials in said shop or other premises, or in some 
other manner to the prosecutor unknown, and the fire thus set or 
applied did take effect, and did burn or destroy one or more casks, one 
or more sacks containing flour, various articles of grocery goods, 
several boxes of lucifer- matches, a quantity of patent fuel or fire-lighters, 
a quantity of oil or other liquid, one or more beds or bedsteads, a 
quantity of wearing apparel, one or more chests of drawers, one or 



AND CIRCUIT COURTS OF JUSTICIARY. 217 

more chain, one or more tables, and other articles, or part thereof, N °- **• 
all forming part of said stock-in-trade, shop-furniture, utensils, and M'Creadia. 
household-furniture, bed and table linen, wearing apparel, plate and 7 
printed books, belonging to you, or to John and William M'Creadie Oct. 2. 

foresaid, or then in your possession, and contained in said shop and house __1 862 * 

or other premises, and insured as aforesaid: And this you the said Witfn ? 
William M'Creadie did with the felonious intent of defrauding the ^ 
■aid Assurance Corporation or Company, or the said James MacKenna, 
by recovering from one or other of them the amount of said insurance, 
or part thereof, above the value of said articles, on the false and fraudu- 
lent pretence that the fire so raised was accidental, and that the articles 
io burned and destroyed were really of the value for which they were 
insured. 

In the course of the evidence for the Crown it was * 
proposed to prove the fact of the removal of certain 
goods and other articles from the premises immediately 
before the date of the fire. 

Maclean, for the panel, objected — this was substan- 
tially an attempt to prove a different crime from the one 
libelled. The fraud alleged to have been intended was 
the claiming upon the goods, &c., which were burned, 
a higher than their real value, by pretending that they 
were of the value for which they were insured. Only a 
part of the goods in the premises were alleged to have 
been destroyed by fire. The Crown would require to 
prove that the articles burned had been insured at more 
than their real value, and that they had been repre- 
sented after the fire to have been of this value, before 
their case was made out. 

The proposed evidence pointed to quite a different case, 
viz., to the fraud as consisting in the panel claiming 
upon goods which he had removed from his premises, 
and which were not there at the time of the fire. No 
such fraud was libelled. The fraud was the charge in 
the 2d count, as it was not otherwise, under this indict- 
ment, a crime to set fire to ones own goods — (Case of 
Daniel Black, High Court, January 9, 1857, Irvine, 
vol. ii. p. 583). As against the admissibility of the 
evidence under the 1st charge, reference was made to 



218 CASES BEFOfcE THE HIGH COURT 

No. *6. the same case, which it was maintained, was an autho- 

William . » «r -• • •111 

M < cresdie. hty to point. In this question the iBt charge was to be 
£y\ looked to as if it were the only one in the libel. In 
1862. Black's case it had been decided that, under an indict- 



wiifui ment charging a person with wilful fire-raising, com- 
ing, mitted by burning the premises of another, it was 
incompetent to prove that the person had insured his 
own furniture and effects therein contained. The 
opinions of the Lord Justice-Clerk and Lord Handyside 
went to this, that while all evidence tending to instruct 
the fact of fire-raising was admissible, it was not compe- 
tent to prove that there was in the view of the person 
charged with that crime, an object in so acting other 
than the fire-raising, such as the defrauding of an insu- 
rance company. 

Shand, for the Crown, replied — the proposed evidence 
was admissible in support of both charges in the indict- 
ment. With regard to its reception ubder the^rrf, the 
case of Black was not an authority against it. In this 
case the removal of goods immediately before a fire in 
the premises occurred, was direct evidence of a charge 
of wilful fire-raising, and was not necessarily evidence in 
support only of that other charge which was here laid, 
viz., that the fire had been raised in these premises with 
a fraudulent intention. This brought him to the 2d 
charge. The proposed evidence was clearly covered by 
its terms. The construction that had been put upon its 
wording was too narrow. The fair reading of the 2d 
charge was, that a fraudulent claim was proposed to be 
made^on the goods destroyed, &s if they were of the 
Whole value of the articles insured. This view of the 
construction of the indictment Was aided by the fact 
that it was alleged that only part of the articles insured 
had been destroyed ; and it was in the narrative of the 
case that the amount of the insurance was greater than 
the valite of the articles in the premises at the time of 
the fire. The fraud alleged, therefore, was, that for 
that part of the articles which was destroyed, the panel 



AND CIRCUIT COURTS OF JUSTICIARY. 219 

claimed the amount for which the whole of the articles J* -. 4 *- 

, . William 

had been insured. The evidence proposed was therefore M'Creadie. 
directly in support of the Very Fraud libelled. The case ***• 
of Black did not apply, as it could not be said that there 1862/ 
was a want of notice of charge of fraud ; and want of ^wilful 
notice was the foundation of the judgment adverted to fog. 
in that case. 

Lord Cowan held the evidence admissible in support 
of both charges. The fact that a panel had been dis- 
covered removing goods whteh had been insured, frdm 
his premises immediately before a fire, was most preg- 
nant evidence that the fire had been wilfully raised. 
With regard to the 2d charge, the case of Black was not 
an authority against the reception of the evidence in 
support of it. The ground of that decision was that no 
notice had been given that the premises had been 
insured, and therefore the policies had not been allowed 
to be looked at. Sere there was no such want of 
notice. The fact that a portion of the articles in the 
premises had been removed went substantially to the 
question whether the remaining part of the stock which 
was destroyed was of the value which was subsequently 
claimed. The fair meaning of the part of the indictment 
in which the fraud was described was, that the articles 
consumed were really not of the value claimed. It was 
relevant to this to inquire whether a part of the insured 
stock was removed prior to the fire. 

The evidence was therefore admitted, and the case 
went to trial. The prisoner was found guilty, and sen- 
tenced to six years' penal servitude. 



220 CASES BEFORE THE HIGH COURT 

WEST CIRCUIT. 

Autumn 1862. 
GLASGOW. 

Sept. 17. 
1862. Judge — Lord Deas. 

Hbr Majesty's Advocate — Gifford A.D. — A. Mure. 

against 

Jessie McIntosh or M'Lachlan. — A. R. Clark. — Maclean. — 
Bannatyne. 

Murder — Declaration — Objections to admission of a panel's declara- 
tion — (1.) That the husband of the panel had been examined by 
the Sheriff-substitute and Procurator-fiscal before she emitted her 
first declaration, and at a time when the Sheriff and Fiscal had no 
reason to suspect that the husband was in any way connected with 
the crime,— and that his declaration had been taken as a precogni- 
tion by which to cross-examine the panel ; (2.) That the three de- 
clarations taken from the panel were not proper declarations or 
voluntary statements at ail, but a series of answers to questions put 
by the Fiscal as to a witness ; (3.) That the examination of the 
panel had been oppressive in respect of the length of the declara- 
tions and the time occupied in the examination ; and (4.) That the 
panel was subjected to unfair treatment under examination, in re- 
spect, as appeared from the second declaration, she was examined 
about certain articles then in the possession of the Fiscal, which 
were not shown to her till after the examination with reference to 
them had been concluded, and which had been done for the purpose 
of entrapping her into falsehood, — repelled. 

NO(47> Jessie M'Intosh or M'Lachlan was accused of the 
M^uJJeh- crime of murder, as also theft — 

Ud. 



Harder. 



Glasgow. In so far as, (1.) on the 4th or 5th day of July 1862, or on one 
1862 or °* ner °' ^ e d* 78 °* th** montn > or of Ju&e immediately preceding, 
or of August immediately following, in or near the house or premises 
in or near Sandyford Place, in or near Glasgow, then and now or lately 
occupied by John Fleming, accountant, now or lately residing there, 
you, the said Jessie M'Intosh or M'Lachlan, did, wickedly and 
feloniously, attack and assault Jessie M'Pherson, otherwise Jessie 
M'Pherson Richardson, then a servant in the employment of the said 
John Fleming, and residing in the said house or premises in or near 



AND CIRCUIT COURTS OF JUSTICIARY. 221 

Sandyford Place aforesaid, now deceased, and did with an iron cleaver No. 47. 

or chopper, or other similar edged instrument, to the prosecutor on- M f Laodi- 
known, strike the said Jessie M'Pherson, otherwise Jessie M'Pherson Ian. 

Richardson, one or more blows on the face and forehead, and several n| B1B ™- 

blows on the head and neck, and did inflict severe wounds on the face, Sep*- 17 » 
head, and neck of the said Jessie M'Pherson, otherwise Jessie. 



M'Pherson Richardson, whereby her skull was fractured, and she was Mnrd * r - 
otherwise seriously and mortally injured in her person; in consequence 
of which, or of part thereof the said Jessie M'Pherson, otherwise 
Jessie M'Pherson Richardson, immediately or soon thereafter died, 
and was thus murdered by you, the said Jessie M'Intosh or M'Lach- 
lan : Further, (2.) time and place above libelled, you the said Jessie 
M'Intosh or M'Lachlan, did, wickedly and feloniously, steal and theft- 
uoudy take away from the said house or premises in Sandyford Place 
aforesaid, Six or thereby silver or other metal table-spoons ; six or there- 
by plated or metal dessert spoons ; six or thereby silver or other metal 
toddy-ladles ; a silver or other metal fish-slice ; a silver or other metal 
soup-divider ; two or thereby silver or other metal tea-spoons ; a plated 
metal sauce spoon ; and six or thereby plated or other metal forks, the 
property or in the lawful possession of the said John Fleming ; as also, 
A velvet cloak ; a cloth cloak ; a Hack silk dress ; a brown or other 
coloured silk dress ; a merino or other dress ; a silk jacket or polka ; 
and a plaid, the property or in the lawful possession of the said Jessie 
M'Pherson, otherwise Jessie M'Pherson Richardson, now deceased, or 
of her heirs, executors, and representatives, or of the said John 
Fleming. 

Three declarations were taken respectively on the 
Uth, 16th, and 21st July last. The evidence with 
respect to them and the circumstances under which 
they were taken, was as follows : — 

Alexander Strathern, Sheriff-substitute of Lanarkshire, being 
shown the three declarations, deponed — They were emitted by the 
panel in my presence freely and voluntarily, when she was in her 
sound and sober senses, and after receiving the usual warning. Cross- 
examined — I think the husband of the prisoner who had been appre- 
hended on a warrant, was examined first. The husband and wife 
were charged with the same charge. It came to be known to me that 
the husband had left Glasgow on the morning of the 4th of July, and 
did not return till late the following week. I cannot answer more 
distinctly as to when it became known to me that he had left Glasgow. 
Hie husband was examined first, his examination lasting within an 
hour. I think it was in the course of the examination that I came to 



£22 CASKS BEFORE T^R ftiaq COUftT 

Ho. 47, know that he had been oat pf town. The wife was (jammed after* the 

WUuofc- husband. X told her she might decline to answer any questions* He* 

Ian. examination continued,, I think, fpur hours. The examination, was 

Glasgow, taken in the usual way. The Procurator-fiscal asked the questional 

& i P afiV' *° ** * allowed him, and I dictate4 the answers to a clerk* She 

— was again examined, some articles having been found in the interval 

IJurder. bearing Qn the case. The second examination was conducted in the 
same way aa the first, but. she volunteered, an explanation which I 
thought i£ right to take down. The articles were shown whije the in- 
terrogatories wjere put. Some introductory interrogatories were put 
first. Then? lasted only a few minuses. The declaration shows the 
time and; place; where the articles were shown. 

John (xkmhel, Joint Procurator-focal of Lanarkshire. — The first 
an4. second declarations were freely and voluntarily emitted by the 
panel when she was in her sound and sober senses, and she had re- 
ceived the usual warning. Cross-examined — I believe the husband of 
the prisoner was apprehended on the same charge. He was liberated 
immediately after the penel was examined. It was not known, though 
reported, that the husband had left town between the 4th July and the 
end of the following week. We bad no means of ascertaining it. 

• . Did you, aa Procurator-fiscal examine the panel and her hus- 
band on one citation, with having committed the crimes of murder apd 
theft? I did. I did not personally make inquiries after the husband, 
lmt I got reports from some of the criminal officers. Had you not got 
reports, from some of the criminal officers prior to the examination ? I 
may ; and personally I made some investigation before he was examined. 
I had no reason to believe that he was out of town before that period. 
I cannot, say 1 had no reason to dpubt it I heard he had been out of 
town from the morning of the 4th, and I had no reason to doubt he 
had been so. I was not satisfied it was true. 

Wm. Hart, Joint Procurator-focal, Glasgow, being shown a decla- 
ration dated 21st July, deponed — It was made by the prisoner freely 
and voluntarily, when she was in her sound and sober senses, and after 
she had been duly warned. 

The following was the part of the second declaration 
which was taken from the panel with regard to articles 
then in the possession of the Fiscal, before they were 
shown to her. 

I know that the late Jessie M'Pherson had a black watered* silk 
dress. She had another dress of silk, of a changing colour, with 
flounces, but with cotton cloth beneath. She had also a velvet cloak, 
the front of which was lined with blue silk ; as also a drab cloth cloak. 
She had also a black dyed harness plaid. I do not know if she had 



Murdor. 



AND CIBCFIT OOURTS OF JUSTICIARY. 229 

• black silk polka, but she told me she had one. The other articles of Np. 47. 
dress I have seen. I have not seen any of these articles of dress M<L*uch- 
lstely, either in her possession or anywhere else. l&n. 

On the articles being shown to the panel, she contra- sep??* - 
dieted this statement, and admitted that she had had 862 ' 
them recently in her possession. 

After the oral evidence for the prosecution had. been 
led, the Advocate-Depute proposed to read the declara- 
tions of the panel, when 

Clark, for the panel, objected to the declarations 
being admitted : — They were unfairly taken, and did, 
not form the voluntary statements of the panel. The 
right of the Crown to take declarations had been greatly 
abused in this case, and to admit them would be op- 
pressive to the prisoner and unfair. (1.) The husband 
of the prisoner had been apprehended on the same charge 
as the prisoner, and had been examined, though neither 
the Sheriff nor Fiscal had any reason to think he was 
connected with the murder ; that was unfair, and con- 
trary to practice, and done with the view of obtaining 
information to aid in examining the prisoner. (2.) Then 
the so-called declarations could not with any truth be 
called the voluntary statements of the prisoner, but 
were extorted from her by a minute examination. 
(3.) It was oppressive to subject a prisoner to such a 
lengthened examination ; the taking of the first declara- 
tion occupied four hours and a half. (4.) There had 
been an endeavour to entrap the prisoner, because she 
was examined about certain articles of dress which, 
though in possession of the Fiscal, were not shown her 
till her declaration was concluded. These proceedings 
were unfair and oppressive, and totally inconsistent with 
the true object of declarations. 

Lobd Deas. — I can only dispose of these objections 
upon the evidence before me — that which has been re- 
corded in the cross- examination of the Sheriff-Substitute 
and the Fiscal. The evidence consists of the cross-exami- 
nation of these two gentlemen, for Mr. Hart was not 



224 CASES BEFORE THE HIGH COURT 

No. 47. asked any questions in regard to this point. Now, look- 
M'Lwich- ing to that evidence, and taking all the declarations, I can 

lmn. 



find no ground for holding that, when the prisoner's 
SepLi "' husband was examined and his declaration was taken, he 
1862 ' was known to be innocent — that his declaration was 
er * taken from him as a precognition. Both the one gentle- 
men and the other swore expressly that they did not know 
at that time of his being absent from town. There had 
been some statements about his being absent, but they 
were not satisfied that he had been or that he was in a 
position in which he could not be implicated. The Sheriff 
and Procurator-fiscal have sworn that distinctly, and we 
have no other evidence upon the point. That evidence 
certainly does not import that the Procurator-fiscal knew 
that the man was out of town at the time that the murder 
was committed. I cannot see that it was wrong on the part 
of the authorities to apprehend the prisoners husband. 
If it had turned out that he had had anything to do 
with this crime — and I have no doubt that, had he not 
been absent, suspicion would have attached to him — 
great blame would have been attached to the authorities 
if they had not taken him into custody ; and it is im- 
possible for me to hold that they did wrong in taking 
the declaration of the prisoner, which they were, indeed, 
bound by their duty to do. The second ground is, that 
there are a great many questions which were put in the 
course of the declaration. That is nothing more than 
what is done in every declaration that is taken. The 
length of the declaration must depend, in every case, on 
the nature of the case ; and in this case it was quite 
right that the prisoner should have the fullest oppor- 
tunity of explaining everything that she could explain, 
and I think we will find that a great deal of it consists 
of explanations which I rather take it Mr. Clark will 
not willingly throw aside. His fourth ground of objec- 
tion is, that questions were put about certain articles 
before they were shown to the prisoner, now the Sheriff 
says that she was shown articles in the course of her 



AND CIRCUIT COURTS OP JUSTICIARY. 225 

examination, that there were some preliminary ques- Na- 
tions asked her before the articles were produced, but M«Lauch- 

these did not occupy above two minutes. That is — 

the Sheriff's evidence about the matter ; and I do not se^iT' 
think that, in my recollection, there was anything 1862, 
different in the Procurator-fiscal's evidence. In these Murder - 
circumstances, I cannot, with every desire to refuse evi- 
dence that is incompetent against the prisoner, see that 
there is any incompetency in reading these declarations 
as part of the case. The question now before me is 
whether I shall or shall not allow these declarations to 
be read. I cannot see any ground whatever, in point 
of law, for refusing to allow them to be read. 

The jury unanimously found the panel guilty as 
libelled ; and she was sentenced to death, but the sen- 
tence was afterwards commuted to ?penal servitude for 
life. 1 



Judge — Lord Ardmillan. 
John Buchanan, Appellant — Trayner. 

AOAIN8T 

The Glasgow Corporation Water Works Commissioners, 
Respondents — J. Burnet 

Appeal— Competence op — Statute 1st Vict. c. 41, (Sheriff Small- 
Debt Court.) — Circumstances under which appeal to the Circuit 
Court held incompetent. 

This was an appeal against a decree pronounced in the J* ;, 48, 
Sheriff Small -Debt Court at Glasgow, in an action at the «• Glasgow 
instance of the respondents for the sum of £7, lis. Id., tio/wuer 
being arrears of water rates due by the appellant for the £mmL 
year* 1857-8, 1858-9, and 1859-60. siopera - 

■ Glasgow. 

Sept. 19. 

1 The circumstances under which this commutation of sentence was 1862. 
granted, formed the subject of a motion in the House of Commons* Appeal. "~~ 
April 24, 1863.— See Appendix. 

VOL IT. ^33 



22t) CASES BEFORE THE HIGH COURT 

No. 48. The reasons of appeal insisted on were — (1.) The 

Buchanan rr v . ' 

^.Glasgow claim sued for was prescribed, and the Sheriff had 

tion'water erroneously repelled this plea. (2.) The Sheriff had 

femmfs- decerned against the appellant although no evidence was 

aionen. ^^^(1 i n support of the claim, nor productions made 



s^fu!'. in support of the charges embraced in the account. 
1862 - Other reasons were stated in the appeal, but with- 

a pp~ l drawn. 

Burnet, for the respondents, objected to the compe- 
tency of the appeal. Even assuming that the Sheriff 
had erred in law as to the plea of prescription, which 
he denied, an appeal on that ground was excluded by 
the Small- Debt Act. The disposal of that plea was a 
matter clearly within the competency of the Sheriff, 
and it was not said that in repelling it he had acted 
corruptly or maliciously. With reference to the second 
reason of appeal urged, it was not competent to appeal 
on the ground of insufficient evidence. The evidence 
was satisfactory to the Sheriff. If it was meant that the 
Sheriff had decided without any evidence whatever, he 
answered that the Sheriff had marked on the back of 
the summons the name of a witness who had been ex- 
amined, and had also initialed in terms of the Act, 
several productions which had been made in support of 
the claim. 

Trayner, for the appellant, replied that he was pre- 
pared to show ew facie of the proceedings, that the debt 
sued for was prescribed, and that if he could do so, the 
appeal was competent. An obvious error in point of law 
committed by the Sheriff was a good ground of appeal. 
It amounted to corruption, not in the ordinary but in the 
legal sense of that word. He referred to the case of 
Bishop v. Chisholm, 16th June, 1820, Fac. Coll. As 
to the evidence, he was instructed to say that none was 
led, and that was a proper subject for inquiry. 

Lord Ardmillan. — I am quite clear that this appeal 
is incompetent. It is obvious that some evidence was 
led. That evidence may have been insufficient — I don't 



AND CIRCUIT COURT OF JUSTICIARY. 227 

say it was — but insufficiency of evidence is no ground of 
appeal. On the other point there is no difficulty. The 
plea of prescription was disposed of by the Sheriff. He 
may have done so erroneously — I don't say he did — but 
I cannot review his judgment upon it. 

The appeal was accordingly dismissed as incompetent 
with expenses. 



SOUTH CIRCUIT. septjs. 

1863. 
DUMFRIES. 

Judge*-— Lords Cowan and Neatbs. 
Her Majesty's Advocate — Qifford A.D. 

AGAINST 

William M ( £wan ok Palmer. — Scott. 

Wickedly and Feloniously having Carnal Connexion with a 
Woman while Asleep, without her Consent, and by a Man 
not her Husband — Sentence. — A panel convicted on the above 
charge sentenced to ten years' penal servitude. 

William M'Ewan or Palmer was indicted and N0.49. 

acpnoAd William 

4CCU8ea — M'Ewan or 

That albeit, by the laws of this and of every other well-governed ^ 

realm, the wickedly and feloniously having Carnal Knowledge of a aJ^^S 1 " 
woman when asleep, and without her consent, by a man not her hus- 1862. 
band, is a crime of an heinous nature and severely punishable : Yet Feloniously 
tkus it is and op verity, that you the said William M'Ewan or HaTin S 
Palmer are guilty of the said crime, actor, or art and part : In so fas with a 
as, on the 2d or 3d day of May 1862, or on one or other of the days w ^ aB 
of that month, or of April immediately preceding, or of June imme- Asleep, 
diately following, in or near the hotel or house called or known as the &c * 
Royal Hotel, in or near Kirkcudbright, in the parish and stewartry of 
Kirkcudbright, then and now or lately occupied by Robert Maxwell, 
innkeeper, then and now or lately residing there, you the said William 
M'Ewan or Palmer did, wickedly and feloniously, invade by stealth a 
bed in said hotel or house, in or upon which Sarah Barker or Maxwell, 
wife of, and now or lately residing with, the said Robert Maxwell, 



228 CASES BEFORE THE HIGH COURT 

No. 49. was then asleep, and did stealthily raise the petticoats of the said 
M'Ewanor ^ ara ^ Barker or Maxwell, and did unbutton or unloose your trousers 

Palmer, and did lie down or place yourself above or beside her, and did intro- 
Dumfriea. duce your private member into her private parts, and did have carnal 

1862 knowledge of her when asleep, and without her consent. 
Feloniously 

Hating The panel pleaded not guilty, and the case went to 

Connexion 



with a 



trial. 



^wie* The jury unanimously found the prisoner guilty as 
>elled. 
Sentence — penal servitude for ten years. 1 



Asleep, libelled 

&c. 



James Bennet, Appellant — Q. Young — Cowan. 

AGAINST 

John Jones, Respondent — E, S. Gordon — A. B. Shand. 

Appeal — Statute 44th Geo. III. c. 45, (Sol way Fishing Act)— 
Conviction — In an appeal from a sentence of the Justices of the 
Peace in a prosecution under the Solway Act, — Held that the power 
of appeal given by the Statute allows a review on the merits. 

(2.) Circumstances in which the conviction of the Justices of the Peace 
for alleged contravention of the Solway Act was set aside on appeal. 

This appeal was taken to the Circuit Court against a 
No. 50, conviction obtained in the Maxwelltown Justice of 

fiennet 

«. Joneg. Peace Court, proceeding on a complaint at the instance 

Dumfriee. of the Superintendent of Police for Dumfrieshire, 

»62. ' founded on the 12th section of the Sol way Act (44 th 

Appeal. Geo. in. c . 45). 9 The conviction bore that the ac- 

1 A report of the evidence in this case, by Hugh Cowan, Esq., 
Advocate, will be found in the Edinburgh Medical Journal for 1862, 
p. 570. See also the case of Charles Sweenie, High Court, Irvine, vol. 
iii., p. 109. 

3 Section 12th, ( If any person or persons shall beat the water, or 
' hush, or lay any hot lime or filth, or steep any green lint or flax, or 
' let off any stagnated water, or water mixed or impregnated with any 
4 hot lime or other pernicious thing, in or into the said arm of the sea, 
1 or any such river, rivulet, brook, stream, pond, pool, or other 
1 water as aforesaid, or shall therein or thereupon, or near thereto 



AND CIRCUIT COURTS OP JUSTICIARY. 229 

cused had been guilty of a contravention of the No. 50. 

A&— 0. Jones. 



In so far as, upon 20th day of Jane last, the said James Bennet Sept^T. 
did, with a wooden pole, unlawfully beat the water in the river Nith, 1862 
which runs into or otherwise communicates with the arm of the sea Appeal, 
libelled, at or near that part thereof which runs or flows past or by the 
Mill-green, situated in the burgh of Maxwellton, in the parish of Tro- 
queer, and stewartry of Kirkcudbright, by continuing to beat the water 
for a considerable time with said pole, as libelled ; and therefore fine 
and amerciate him in the sum of five pounds sterling, of penalty, as 
for a first offence, and also in the sum of five pounds sterling, being the 
costs of suit or prosecution payable to the prosecutor ; and failing im- 
mediate payment of said sums, sentences and adjudges him to be con- 
fined in the prison of Kirkcudbright, and there kept to hard labour for 
one calendar month, &c. 

The following reasons of appeal were pleaded for the 
appellant : — 

1. The respondent had failed to prove that the opera- 
tions founded on as a breach of the Statute took place 
within the arm of the sea therein referred to, or in any 
of the several streams and waters which run into or 
communicate therewith. 

2. Assuming that the operations libelled as having 
taken place on 30th June last, actually occurred 
(though the contrary was maintained), the respondent 
had failed to establish that the locus was the same as 
libelled, and within the jurisdiction of the Justices of 
said stewartry. 

3. The decision was wholly against the evidence 
adduced, only two men at a distance of 60 yards in the 

1 set, lay or place any fire or light, or any white or other object, device, 
1 or thing, (except lawful fishing nets and engines,) which may be or 
4 tend to the injury or destruction of the fish, or of the brood-span or 
( fry thereof, or which may prevent or tend to prevent fish from 
4 entering into the said rivers and waters, or any of them, or from 
1 going up or down the same, every such person or persons so offend- 
1 tag, shall for the first offence forfeit and pay the sum of Five pounds, 
1 for the second offence the sum of Fifteen pound, and for the third 
4 and every other offence the sura of Twenty pounds'. 



230 CASES BEFORE THE HIGH COURT 

Bran* S^y °^ a summer morning, swearing to the appellant's 

«- JoneB - beating the water as libelled, whilst six fishermen law- 

^j|™^ fully engaged in his immediate company, deponed to 

1862 - his not having done so ; and these men more or less 

Appeal, distinctly deponed to his having been at the time 

libelled engaged exclusively in the legal prosecution of 

his duty. 

The counsel for the appellant having entered on the 
evidence led in the inferior court, it was objected by 
the respondent's counsel, that in appeals to the Circuit 
the merits of the conviction could not be looked into. 
M'Lean v. Steele % Co., High Court, Nov. 24, 1856, 
Irvine, vol. ii. p. 55S. 1 

Answered for the Appellant : — 

The inferior court was a court of record. It had 
been repeatedly settled in the Justiciary Court, that 
where there is no statutory provision to the contrary, 
the evidence must be taken down ad longum. Under 
the Act an appeal was given to the Quarter-Sessions in 
England, and it could not be supposed that such appeal 
was meant to be only on points of law. 

Lobd Cowan. — I think, under the power of appeal 
allowed by the Act, this Court is not excluded from 
considering whether the conviction was a just one or 
not upon the evidence. Had the Act excluded our 
taking any notice of the facts, the case would have been 
different. But so strongly does the rule apply that the 



1 Section 24th provides, inter alia, ' that all and every person and 
' persons who shall think himself herself or themselves aggrieved by 

* the judgment of any Justice or Justices of the Peace, or Sheriff or 
1 Stewart-depute or their substitutes, or other Magistrates aforesaid, 
' within that part of Great Britain called Scotland, in any of the cases 
4 aforesaid, may appeal to the Lords Commissioners of Justiciary at 
4 their next Circuit Court, in the manner and by and under the rules, 
4 limitations, conditions, and restrictions contained in the Act of Pw- 
1 liament, passed in the twentieth year of King George the Second, 
4 for taking away and abolishing the heritable jurisdictions in that part 

* of Great Britain called Scotland.' 



AND CIRCUIT COURTS OF JUSTICIARY. 23 1 

jurisdiction of the High Court cannot be excluded, gj^ 
except where there is a special provision to the contrary, *• Jones, 
that there is a very remarkable case just now before ^ mfn 2 ea - 
that Court, under the Forbes-Mackenzie Act, which is js tra. ' 
very decided in its terms excluding review — the diffi- Appeal, 
culty being that while it excludes review of all cases 
tried before the Justices or Sheriff, that provision does 
not apply to cases tried in the Bailie-court. 

Lord Neavks — I entirely agree with your Lordship. 
The evidence in this case has in point of fact been 
recorded. It has been done, and done regularly. In 
some instances, as under the Small D^bt Act, there are 
limitations to the ground of appeal, so that it can only 
be taken where malice, oppression, or departure from 
form is alleged. But there is no such limitation here, 
and therefore it humbly appears to me that we are not 
only entitled, but bound to look into the grounds of the 
conviction in this case. 

Young and Cowan for the appellant. The term 
'beating the water' was not a nomen juris, and the pro- 
secutor was bound to allege the particular manner and 
effect of the procedure. If it were contended that it 
had an injurious effect on the fish, that ought to have 
been distinctly averred. On the contrary, the com- 
plaint did not even explain the nature of the alleged 
operations. The appellant's employer was tacksman of 
the fishings in the pool where the alleged offence was 
committed. The appellant had been engaged on the 
morning in question in fishing from a boat with a 
' rake-net/ consisting of a pole with an iron hook at the 
end, to which a net was attached. The use of this in- 
strument was lawful ; it was found the most available 
mode of fishing in deep holes ; and the use of it re- 
quired the exercise of considerable force and dexterity. 
That was the operation which the two watchers em- 
ployed for the discovery of contraventions of the Act, 
and to whom, as informers, half the penalties went, 
had, in the dusk of the morning, at the distance of 60 



232 CASES BEFORE THE HIGH COURT 

No. 50. yards, pronounced to be € beating the water/ It was 
•.Jones, not a case of nicely balanced evidence, but a gross 
Dumfries, case ; and the sentence ought to be quashed. 
Se f86-2. 7 " Gordon and Shand for the Respondent. The Act foun- 
Appeai. ded on was passed for the protection of the rights of the 
river heritors, by preventing whatever tended to ob- 
struct the free passage of the fish. The terms of the 
12 th section, taken in connexion with the expression 
' beating the water/ clearly implied that that operation, 
which was intended to frighten the fish from ascending 
upward, for the benefit of those fishing below the caul 
of Dumfries, was one of the class aimed at by the Sta- 
tute. It was for the interest of the tacksman to pre- 
vent the fish from going over the caul, and to drive 
them into his nets at the pool, where the act libelled 
took place. There was no evidence that any salmon 
had ever been taken with the rake- net in that pool by 
the tacksman's fishers. It was in evidence, that on the 
morning in question they set out from the bank with a 
quantity of stones in the boat, and one of the appellant's 
witnesses had been convicted of throwing stones into the 
water on that very morning. If they had been bona 
fide fishing with their net, it was not very likely they 
would have thought it advisable to disturb the fish at 
the same time, by flinging stones into the water. Both 
operations were practised for the same purpose, viz., the 
disturbance of the fish. As to the weight of testimony, 
the prosecutor could adduce no better evidence than 
that of the two authorized watchers, who were bound 
to bfe on the spot and observe what took place ; and 
the mere number of witnesses on the other side gave no 
additional credibility to their evidence. The Justice 
had rightly given more weight to their testimony than 
to that of persons who had an interest to deny the real 
state of the facts. 

Lord Neaves. — I see nothing in this charge that 
affects its relevancy ; but upon reading the evidence I 
think the case stands in a peculiar position. I recog- 



AND CIRCUIT COURTS OF JUSTICIARY. 233 

nise to the full the principle contended for by the respon- No. 50. 
dent, that the Court should not interfere in an ordinary «. Jones, 
case with the finding of the judge in the inferior court, Dumfries, 
who had seen the witnesses ; but the position of this iW ' 
case is somewhat peculiar. It was distinctly sworn by Appeal. 
Mr. Payne that he prohibited his men from beating the 
water, and in that statement he was corroborated by 
some of the witnesses for the defence. Now, if that 
were a falsehood and an act of perjury, it was a very 
serious thing, for it was not a matter of mere mistake 
in observation. But Mr. Payne is a respectable person, 
having an interest to fish in this place, and having a 
right to do so. He might have a right to do so in a 
particular way or not ; and if his statement be true that 
he prohibited beating the water, and did not permit it 
to be done in his presence, it raises a certain presump- 
tion that in his presence none of his workmen would do 
a thing which he had prohibited when no benefit could 
accrue to them. The only one who could be benefited 
is Mr. Payne, and he avers and swears that he refused 
to be benefited in that particular manner. And thus 
we come to the fact that the defender is accused of 
having committed in his master's presence an illegality 
which his master swears he prohibits him from doing, 
and from which he could derive no benefit. That is a 
peculiarity in this case. And this runs into another 
question — Whether the parties who brought this prose- 
cution — right or wrong — were not seeking to include 
in the notion of ' beating the water/ all the uses that 
were made of this particular net by poking it down and 
'churning' with it, — which is not certainly quite beat- 
ing the water where the stick is under the water. But 
it seems to be said that this use of the net was a means 
of disturbing the fish, a device, and an evasion of the 
law. If so, then let that particular offence be grappled 
with fairly, and let the prosecution be directed, not 
against the servant doing his masters work impli- 
citly, but against the true delinquent who authorised 



234 CASES BEFORE THE HIOH COURT 

g* 50 - it. I therefore think the appeal should be sus- 
v. Jones, tained. 



Dumfriee. Lord Cowan. — I am entirely of the same opinion. 
1862. * The objection to the relevancy presented itself to me 

Appeal, rather more strongly than your Lordship has stated it ; 
because I apprehend that when the general charge of 
' beating the water' was made, the kind of thing alleged 
to constitute the offence ought to have been inserted in 
the libel also. But I do not press that view, for this 
reason, that as ' beating the water 1 might be shown on 
the proof to be an illegal and guilty thing, and as no 
objection had been taken before the Justice on that 
point, it might be held that there was sufficient genera- 
lity in the charge to permit the party prosecuting to 
show that this was a guilty beating of the water. But 
upon the evidence I am fully satisfied that on the 
morning in question nothing else was done by Bennet 
and his associates than what was done every morning 
that the rake- net was used ; and if so, I do not see why 
this poor workman should suffer for doing his master's 
work. It seems to me that there is no case against 
Bennet, and that the appeal must be sustained. 

The sentence of the court below was accordingly 
quashed^ with expenses to the amount of twelve guineas. 

T. F. Smith Writer.— T. &. J. M'Gowur, Writers.— Agents. 



Benjamin Walker, Appellant — Cowan. 

AGAINST 

John Jones, Respondent— >A. B. Shand. 

Appeal — Pbosecutor — Expenses — In a prosecution before a Justice 
of Peace Court, at the instance of the Procurator- Fiscal, for contra- 
vention of the Solway Act, the complaint wsb dismissed, but ex- 
penses were refused to the respondent. On appeal to the Circuit 
Court, expenses were granted to the appellant, it being held that, as 
any one of the public could prosecute under the Act, the fact of the 
prosecutor being a public officer gave him no privilege. 



AND CIRCUIT COURTS OF JUSTICIARY. 235 

The appellant was tried before a Justice of Peace $^ £; 
Court for a contravention of the Solway Act, but the «. Jo nes, 
prosecutor failed to establish his case, and the complaint ^ t fr £?' 
was dismissed. Expenses were refused to the accused lro' a. 
party, on the ground that the information was at the Appeal 
instance of a public officer. 

Counsel for the appellant, in support of the claim for 
expenses, referred to a decision by Lords Ivory and 
Cowan at the Dumfries Circuit in April 1859, in which 
expenses were given to an appellant in a similar case, 
the Court having held that the fact of the informer 
being Procurator-fiscal afforded no privilege. Any one 
could prosecute under the Act, and he was in the same 
position as any other informer, and it was therefore 
within the power of the inferior court to grant expenses. 

The Court sustained the appeal on the same ground, 
and awarded expenses, which were modified to six 
guineas. 

J. M'M. Ciucmoii, Writer— T. & J. M'Gowan, Writers— Agents. 



HIGH COURT. 

Present, 

The Lord Justice-Clerk, 

Her Majesty's Advocate — W. Ivory A.D. 

AGAINST 

John Anderson — W. Christie. 

Theft — Housebreaking — Proof. — Circumstances in which an aggra- 
vation of Housebreaking was, under direction of the Presiding 
^dge, found not proven. 



Not. 17. 
1862. 



236 CASES BEFORE THE HIGH COURT 

* oim " John Anderson was indicted and accused of the crime 
Andewon. f Theft, especially when committed by means of House- 

^or ! 7* breaking : — 

1862. ° 

Theft, Ac * N B0 PAR 18 » 0Q ^ e ^Oth ^ °* August 1862, or on one or other 
of the days of that month, or of July immediately preceding, or of 
September immediately following, you the said John Anderson did, 
wickedly and feloniously, break into and enter a cellar or other pre- 
mises situated in or near Abercromby Place, Edinburgh, then and 
now or lately occupied by John Archibald Fullarton, bookseller, then 
and now or lately residing in or near Abercromby Place aforesaid, by 
forcibly removing or unfastening two staples or holdfasts which secured 
the door of said cellar or premises, or otherwise by forcing open the 
said door ; and having thus, or in some other manner to the prosecutor 
unknown, obtained entrance into said cellar or premises, you the said 
John Anderson did, wickedly and feloniously, steal and theftuoualy 
away take an iron pulley, six or thereby brass cranks, two or 
thereby hammers, a tin flask, a paint brush, a leather tool 
case, a saw, a steel widener, three or thereby files, three or 
thereby screw-drivers, four or thereby chisels, five or thereby 
gimlets, a bag, one hundred or thereby screw-nails, one hundred 
or thereby holdfasts, and four and a balf yards or thereby of canvas, 
the property or in the lawful possession of William Bryden and Son, 
bell-hangers in or near George Street, Edinburgh : And you the said 
John Anderson have been previously convicted of theft : And you the 
said John Anderson having been apprehended and taken before James 
Blackadder, Esquire, one of the magistrates of the city of Edinburgh, 
did, in his presence at Edinburgh, on the 4th day of September 1862, 
emit a declaration, which was subscribed by him in your presence, you 
having declared that you could not then write : Which Declaration ; 
As also the stolen property above libelled, or part thereof; As also an 
extract or certified copy of a conviction of the crime of theft obtained 
against you the said John Anderson, under the name of Dugald 
Ferrier, before the Sheriff-Court of Edinburgh-shire, with a jury, at 
Edinburgh, on 8th November 1845 ; As also an extract or certified 
copy of a conviction of the crime of theft obtained against you the said 
John Anderson, under the name of Dugald Ferrier, before the High 
Court of Justiciary, at Edinburgh, on 17th March 1848 ; being to be 
used in evidence against you the said John Anderson at your trial, 
will, for that purpose, be in due time lodged in the hands of the Clerk 
of the High Court of Justiciary, before which you are to be tried, that 
you may have an opportunity of seeing the same. 

The following evidence was then adduced — 



AND CIRCUIT COURTS OP JUSTICIARY. 237 

William Purves, BeUhanger with Brydcn $ Son.— On the 30th v ? t ^ 2m 
August 1 was repairing a door at 6 Abercromby Place. William Andersoo. 
Morrison was working with me ; we stopped work 5 minutes before Hieh Court. 
2. We put our tools in a cellar down the common stair ; it is occu- Nov. 17. 

pied by W. Fullarton, who lives in the common stair above. I after- ' 

wards showed the cellar to the witness Janet Shortreed. I secured Theft » &c - 
the cellar door with two staples on outside, one at top and one at 
bottom. (Identifies tools.) On Monday morning at 6.30 we re- 
turned, and found the cellar door open, the holdfast at top was away. 

1 cannot say if the one at the bottom was away or not. The tools 
were gone. The cellar door pulls to you. 

Janet Shortreed, Servant to Fullarton. — He occupies two cellars 
at the foot of common stair. Purves and Thomson were working at 
the outer door. They came to me on Monday the 1st September ; 
they afterwards showed me the cellar from which the tools were stolen. 
It was occupied by Fullarton. 

Peter Taylor, Broker. — On the 30th April, between 1 and 2 p.m., 
panel sold me the articles libelled. I gave him Is. 6d. He gave the 
name of John Smith, Lawnmarket. I am sure it was not* later than 

2 nor earlier than 1 p.m. he came to me. 

William Morrison. — I was working with Purves in Abercromby 
Place on 30th August. We left at 5 minutes before 2 p.m. We put 
the tools in a cellar, and fastened the door with two staples, one at 
top and one at bottom. We left just in time to be at George Street 
at 2. On Monday morning we found door open and tools away. 

The convictions were proved in the usual way. 

The Lord Justice-Clerk asked the counsel for the 
prosecution whether, on the evidence which had been 
given as to the state of the premises, he meant to insist 
in the aggravation of housebreaking. 

Ivory. — The mode of entry adopted by the panel was 
not the usual one, and therefore infers housebreaking. 

The Lord-Justiok-Clerk in his charge to the jury 
said — Housebreaking consists in violating the security 
of a dwelling or other house which is fairly locked up 
or otherwise secured to prevent entrance. If, therefore, 
a person enters by merely turning the handle of a door, 
this is the regular mode of entry, just as the owner him- 
self would enter, and is not housebreaking ; and if, as 
here, a cellar door is secured by a latch or a hook and 
eye, and a thief comes and undoes these, this will not 



238 CASES BEFORE THE HIGH COURT 

N jih 2 ' C0nst ^ u * e housebreaking. He may be guilty of theft 
Anderson, if he takes anything, but you must discharge from your 
*%h Court, minds all consideration of the aggravation of house- 

J862.' breaking as against the panel. 
Theft, &c The Jury unanimously found the panel guilty of 
theft as libelled, but without the aggravation of house- 
breaking. 
Sentence — six years' penal servitude. 



Nov. 24. Present, 

1862. 

The Lord Justice-Clerk, 
Lords Cowan, Deas, Neaves, Ardmillan, and Jbryibwoode. 
Her AIajesty's Advocate — Sol.-Gcn. Young — Moncriqff A.D. 

AGAINST 

James Miller — Scott — Morison. 

Threatening Letters — Indictment — Relevancy. — Held, that the 
term * Threatening Letters ' is not a nomen juris, and that an in- 
dictment which simply libelled the ( wickedly and feloniously writ- 
* ing and sending threatening letters/ was not relevant. 

No. 53. This case came before the Perth Circuit Court of 

James 

Miller. Justiciary in September last. The panel, a writer in 

High Court. Dundee, was charged with having written and sent to a 

1862. merchant there, and another in Glasgow, a variety of 

Threaten- letters, containing threats of personal violence and public 

'exposure, on account of alleged injuries. The major 

part of the proposition of the indictment set forth, that 

Albeit, Ac., the wickedly and feloniously Writing and Sending, 
or Causing to be Written and Sent, to any of the lieges any Threaten- 
ing Letter, is a crime of an heinous nature, and severely punishable : 
Yet, &c. 

An objection was taken by counsel for the panel, that 
the libel was not relevant, in respect the major propo- 
sition did not set forth any crime known in the law of 



AND CIRCUIT COURTS OF JUSTICIARY. 239 

Scotland. The point appearing to the Court to be of **©. 53. 
general importance, the case was certified from the Miliar. 
Circuit to the High Court I S& ( a4 rt ' 

Morison, for the panel, argued — No instance could be 1962.* 
shown of an indictment similar to the present having .Threaten- 
been sustained. The only case in which such a form 
had been used was that of Gray v. Mackenzie, High 
Court, Feb. 24, 1862, Irvine, vol. iv. p. 166, but in that 
case the point now raised was not decided. The state- 
ment in the libel amounted to this, that the sending of 
any threatening letter whatever was a crime. Evidently 
many letters might be written which could be charac- 
terized as threatening, and yet were not criminal. The 
illustration readily occurred of a man of business being 
employed by another to get money from a person, and 
to threaten him if he did not pay. That was in every 
sense a threatening letter, yet it could not be maintained 
that it involved any criminal liability. The usual addi- 
tion of the words € particularly, &c./ in the major 
merely indicated that the thing so defined constituted a 
crime, the definition not being complete without them 
—Alexander F. Crawford, High Court, Jan. 6 and Feb. 
11, 1850, J Shaw, p. 309. There was only one reported 
case in which the word ' especially' was used — Charles 
Ross, High Court, July 27, 1844, Broun, vol. ii. p. 271. 
The only two cases where a person was criminally liable 
for sending a threatening letter were when letters were 
sent for the purpose of revenge, or for extorting money, 
and when such was the case, it was necessary that the 
major proposition of the libel should set forth either the 
one or the other of these intents. Even then it was 
necessary that the threats should be such as would alarm 
a person of ordinary firmness ; the mere threat was not 
in itself criminal — Hume, vol. i., p. 439 ; Alison's Prin., 
576. But here there was no specification of the nature 
or purport of the threats at all. 

Moncrieff, for the prosecution, answered — The ob- 
jection to the indictment proceeded on a misunderstand- 



240 CASES BEFORE THE HIGH COURT 

No. 53. ing of the meaning of the words € threatening letters 1 
Miller, in common English and in law language. To threaten 
High Court, was defined in Richardson's Dictionary as meaning € to 
1862.' ' menace, to announce or denounce, to declare, to mani- 
Threaten- f fest evil, mischief, punishment, anything fearful or 
lng " € dreadful.' Hume describes the writing and sending of 
a threatening letter as a crime tending ' to deprive the 
' person to whom it was addressed of that peace of 
' mind and opinion of security which are among the 
' chief benefits of the state of civil union.' The sending 
of threatening letters, therefore, according to that 
writer, though not a statutory offence, was a crime at 
common law, which guards the peace of any individual 
from being disturbed by any threats of evil, whether the 
threats be made for the sake of lucre or from mere malice. 
.There was no case exactly of the same class as that with 
which the Court were now dealing, but the two' that 
had been quoted were conclusive against the objection. 
The word € particularly' in the one, and € especially' in 
the other, implied that the thing so defined must be in 
itself a crime, for how could there be a particular in- 
stance of a mode of crime or of an aggravation, unless 
the thing to which these qualifications referred were a 
crime in itself ? The word * especially' was that 
commonly used in such indictments, to indicate an 
aggravation of what was in itself an offence. During 
the last 30 years, the word ' particularly' had been 
used in about three cases. In the following cases, the 
word 'especially' was used in the major, and in the 
minor the words ' aggravated as aforesaid 1 — Douglas, 
Dumfries Circuit, April, 1840 (unrep.); Buchanan, 
Glasgow Circuit, Sept. 1843, Broun, vol. ii., p. 271; 
Sprot, ib., p. 179 ; Muir, Glasgow Circuit, Sept. 1844, 
(unrep.) ; and Smith, Arkley, p. 4. In none of these 
cases was any objection taken to the relevancy. There 
was, therefore, a consistent practice shown, followed 
without objection up to this time. That which is 
charged as a crime with an aggravation must be held to 



AND CIRCUIT COURTS OF JUSTICIARY. 241 

be a ciime without the aggravation. In the case of N©j>a. 
Crawford it was laid down by Lord Moncrieff that an Miiicr. 
illegal demand for a thing in itself legal is a crime. So HighCourt 
in Maclean, July 12, 1854, Irvine, vol. ii., p. 520. 1862.' 
These authorities showed that the act of writing and Threaten* 
sending a threatening letter was of itself a crime ac- 
cording to the common law, whatever might be the 
motive for sending such a letter. 

The Solicitor- General, for the prosecution, added — 
The letters founded on were such, that to write and 
Bend them constituted an offence by the law of Scotland. 
If the writing and sending of such letters constituted a 
crime, what was the name of it ? They clearly came 
under that definition of the crime of writing and send- 
ing threatening letters given by Hume. They were letters 
the threats in which were of a serious and alarming cha- 
racter. They were not threats in any other or lowersense. 
The word threat was often loosely and popularly applied 
to anything that a party announced his intention to do; 
but these letters contained threats of mischief — of evil- 
threats which he was entitled to characterize as of a serious 
and alarming character ; such as no person was entitled 
to write and send. Nobody was entitled to send letters 
to another man threatening to shoot him if he found an 
opportunity, or to horse-whip him, or to write libels 
against him and post these up in public places, and 
drop them in a public place. The objection made to 
the major of the indictment went deeply into the 
nature of the crime. He understood it to amount to 
this, that in the major the Crown must either specify 
the kind of threats which were used, or the purpose 
which the acoused had in view in making them ; but 
he did not understand that it was contended that a 
specification of both of these things was necessary in 
the major. In some cases the nature of the threats 
was specified in the major, and in others the purpose 
hut not the nature of the threats. Now, what was 
the reason in principle for requiring the prosecutor 

VOL. IV. Q 



242 CASES BEFORE THE HIGH COURT 

No. 53. in his major to attempt to characterize the nature 
Miller, of the threats which the letters contained? If they 
HighCourt. had a whole series of letters, as in this case, the nature 
1862." of the threats in every one of them might be different. 
Threaten- One letter might contain a threat against the person's 
mg *"* life, another against his property, and another against 
his reputation. There was no end to the kind of threats 
which might be made, any one of which might be a 
crime ; because any one of them would tend to deprive 
the man who was threatened of that peace of mind of 
which the law secured him the enjoyment. If it were 
necessary to specify in the major the nature of every 
threat, they might in some cases have a major as long 
as the generality of minors. There was no reason in 
principle for doing so, and none had been adduced ex- 
cept one, which was generally disregarded by the Court, 
namely, that if they used the general charge merely of 
sending threatening letters, it was possible to bring 
within the meaning of the general words something 
which might not be a crime. But a major in an indict- 
ment need not exclude everything which was not a 
crime, provided it included what was a crime, and the 
minor set forth undoubtedly what was indictable and 
was included in the major. There were many falsehoods 
and frauds not indictable, but the specification in the 
major of ' falsehood and fraud* covered many indictable 
frauds and falsehoods — (Maitknd, Feb. 7, 1842, Broun, 
vol. i. p. 57, per Lord Mackenzie). The phrase € send- 
' ing a threatening letter' was a nomen juris in the sense 
in which it was meant here. There was a conclusive 
example in the case of James Nelson, Perth Circuit, 
(April 1840 unrep.), in which the major was the same in 
form as here, with the exception of the word 'maliciously' 
instead of ' feloniously/ but no objection was taken. 

Scott, for the panel, replied— The words ' writing 
' and sending threatening letters' were not voces signata, 
and meant nothing more in this indictment than in com- 
mon language. The prosecutor was bound to libel 



AND CIRCUIT COURTS OP JUSTICIARY, 243 

specifically the nature of the threat, the purpose or the No -w. 

U&XDQ0 

result. There was nothing of the kind here ; but the MiUer. 



thing had been put in the barest and most abstract form High Court 
of ' sending any threatening letter' whatever. It was Tm. 
not disputed on the part of the Crown, that sending Threaten- 
threatening letters included a vast variety of acts that 1DgLettarfc 
were not criminal at all ; and it was stated by the 
Solicitor-General that the public prosecutor was not 
bound to exclude from the libel acts which were not 
criminal provided the libel did include acts which were 
criminal. No authorities had been referred to in sup- 
port of the averment that the words ' sending threaten* 
' ing letters' had acquired a technical meaning ; and the 
public had a right, therefore, to know from the Court 
what it was meant if they said that sending threatening 
letters was a crime. The criminality depended entirely 
on the nature and purpose of the threat, which ought 
therefore to be clearly and specifically described. If 
the Court sustained this indictment, the public were 
entitled to know what ' a threatening letter/ in the tech- 
nical sense, was. The authorities, both in Scotland and 
England, showed that the phrase was used both in re- 
ference to criminal letters and to letters not criminal — 
Russell on Crimes, vol. ii. p. 406 ; Archbold's Pleading 
and Evidence, p. 746 ; John Arthur, High Court, March 
16, 1836, Swinton, vol. i. p. 124 ; Alisons Pract., p. 232. 
It had been suggested by the Court that the words 
1 wickedly and feloniously* might be held to supply the 
deficiency of specification ; but these words were not in 
themselves sufficient to characterise crime, and were, in 
point of fact, of very modern introduction as words of 
style — Hume, vol. ii. p. 239, note, and cases there cited. 
Prior to 1729, they had no existence in indictments, and 
unless the act charged was in itself criminal, these words 
had no effect in making it so. The word ' feloniously' 
was used merely as equivalent to ' knowingly' or ' wil- 
' fully.'— Charles Sweenie, High Court, June 18, 1858, 
Irvine, vol. iii. p. 109 ; Elizabeth Kerr, High Court, Nov. 



244 CASES BEFORE THE HIOH COURT 

No. 53. g and 26, 1860, Irvine, vol. in. p. 627. In the latter 

James 777 1 

Miller, case these terms were held by the Lord Justice-General 

HighCoupt to be mere words of style. 
1862. " The Lord Justice-Clerk. — The Court having formed 

Threaten- an opinion in this case, they have requested me to state 
*"" the grounds of it. The major proposition charges the 
accused with the ' wickedly and feloniously writing and 
' sending, or causing to be written or sent, to any of 
' the lieges, any threatening letter.' Now it is neces- 
sary to consider whether this major proposition, as re- 
gards its relevancy, obtains support from the use of the 
words ' wickedly and feloniously ;' and it must be ob- 
served that, properly speaking, these words have no 
place in the major proposition. The proper place for 
these words in an indictment is in the minor proposi- 
tion, and when they occur in the minor, they express 
a quality of the act which is there specifically charged ; 
they express that which is essential to the constitution 
of the crime — a certain condition of mind on the part of 
the accused at the time of committing the act libelled. 
I do not say that it is impossible, that these words should 
have any force or effect in a major proposition ; but 
whatever force or effect they may have, it cannot alter 
their settled meaning, which is what I have now en- 
deavoured to explain. 

Abstracting these words, the crime charged is, ' writ- 
' ing and sending a threatening letter/ Now, that the 
use of threats is, in certain well-known cases, a crime in 
the eye of the law of Scotland, will not admit of dispute. 
A threat to burn a man's house is undoubtedly criminal, 
and so is a threat to put him to death, or to do him any 
grievous bodily harm, or to do any serious injury to his 
property, his fortune, or his reputation. These are all 
criminal threats ; and any one who uses such threats 
may be punished for the use of them, although he had 
no intention of carrying them into effect, and no pur- 
pose to serve in using them, except it may be the grati- 
fication of his own malice or his own caprice. The very 



AND CIRCUIT COURTS OF JUSTICIARY. 245 

using of the threat is in these cases itself a crime. But 'JjJJi 
then, while there is a certain class of threats that are un- Milier - 
doubtedly criminal in the eye of the law, there is ano- H a* y ^*" 
ther and a much larger class of threats that are not so ; 1862 - 
and even threats that are immoral and unjust may not J h 2J£l£» 
be of such a kind as to amount to a crime. It is 
therefore absolutely indispensable, when the criminal 
law deals with the use of threats as a ground of punish- 
ment, that care should be taken to distinguish between 
these two classes of threats. It seems to follow from 
this, as a necessary consequence, that the major propo- 
sition of a libel which charged the using and uttering 
of threats would not be relevant, assuming that that 
means the using and uttering of threats verbally, be- 
cause there may be the using and uttering of threats in 
a great variety of cases which would not amount to a 
crime ; and the major proposition which I have supposed, 
therefore, would be a bad major proposition. On the 
other hand, it seems clear enough that the using and 
uttering of a threat verbally of such a kind as I have 
already adverted to— a threat to burn a man's house, or 
to take his life, or to do him some grievous harm — 
would be a relevant point of dittay, and a major propo- 
sition setting forth that would set forth a crime known 
in the law of Scotland. 

But here we have the element of writing, and it is 
that which gives to this case its peculiar importance. 
The threats here are contained in letters, and the ques- 
tion comes to be, whether the crime of writing and 
sending threatening letters, or the writing and sending 
of a threatening letter, is a relevant statement of a crime 
in a major proposition. Here, again, it seems abundantly 
clear, that the writing and sending of a threatening 
letter, in the popular sense of these words, is not in 
every case criminal, any more then the use of verbal 
threats is always criminal. For it is only certain threats 
that are criminal ; and it is only if threats of that kind 
are conveyed in writing, that such writing becomes crimi- 



246 CASES BEFORE THE HIGH COURT 

No. 53. na i # it may be also that the threats so conveyed are used 
Miller, for an unlawful purpose, such as extorting money, and 

KghCourt' thus they may acquire in another way a criminal charac- 
1862. ter. But if in the natural and popular sense these words, 

in h Sttem € wr ^ n S an ^ sending a threatening letter/ do not in 
themselves amount to a statement of what is criminal, 
the only question remaining is, whether writing and 
sending threatening letters, or rather, properly speaking, 
the term ' threatening letters/ has a technical and fixed 
meaning in law, and signifies the writing and sending of 
letters containing threats of that particular kind of which 
the use is criminal ? Now, we have considered the various 
authorities and the cases that have been cited to us, 
and upon the whole we have come to the conclusion 
that there has been no such fixed understanding or 
practice as to give any definite technical meaning to the 
term l threatening letters/ and, consequently, that the 
major proposition of this indictment, which we read, for 
the reasons I have already stated, as simply libelling the 
writing and sending of a threatening letter, is not 
a relevant major proposition. The objection to the 
libel is therefore sustained. 

The panel was then dismissed from the bar. 



Donald Jamieson and Others, Suspenders — Maclean. 

AOAIN8T 

Adam Mackay, Respondent — A. R. Clark. 

Suspension — Statutes 13th and 14th Vict. c. 33, and 19th and 
20th Vict. c. 103 (General Police Acts) — Oppression. — Circum- 
stances in which a conviction for Theft by a Burgh Magistrate, 
under the General Police Act, was suspended, on the ground that 
No. 54. tne proceedings were oppressive. 
Jamieson 
and Others _ . . 

v. Mackay. This was a suspension of a sentence pronounced by 

High Court, one of the magistrates of Dumbarton in the following 

18*62. " circumstances :— The suspenders were seven boys, sons 

Suspension, of respectable parents in that town, the age of one of 



AND CIRCUIT COURTS OP JUSTICIARY. 247 

them being sixteen, that of the rest varying from No..*4. 
eight to thirteen. On Sunday, 13th July 1862, aandothen 
theft of strawberries was alleged to have taken place *° ay " 
from a garden in the neighbourhood of Dumbarton. Nov. 24. 
One of the boys was apprehended near the premises on 1862 ' 
the charge of having been concerned in the theft, and ^ eDai<m 
the others were apprehended on the same charge, with- 
out a warrant, on the same evening, while in their 
homes. They were all lodged in the police-office ; but, 
with the exception of one, were allowed to be bailed out 
by their friends on their giving security to the amount 
of £2 for each, that they would bring them back next 
morning. On Monday, at ten a.m., they assembled at 
the police-court — one of them attended by his mother, 
one by an elder brother, and the rest without friends. 
The statement of facts for them bore, that, on arriving 
at the Court, they were separated from their friends, 
and confined in a room under the charge of an officer, 
who repeatedly enjoined them to plead guilty, telling 
them that if they did so, they would get off easily. 
When the case was called, they were put at the bar, 
when a complaint was read, charging them all with the 
theft of six pints of strawberries. This was the first 
notice they had of the existence of such a formal com- 
plaint. They were not aware that the case was to be 
proceeded with that day. The complaint had npt been 
served on them, and they had received no citation to be 
present to answer it. A citation, with warrant for their 
apprehension and to cite witnesses for both parties, was 
for form's sake filled up and signed by the magistrate, 
after they were in Court. On the complaint being read 
over to them, they all, with one exception, pleaded 
'guilty/ Thereupon, the presiding magistrate found 
them guilty as libelled, and sentenced them to imprison- 
ment for fifteen days ; and, on the motion of the corn- 
plainer, deserted the diet, pro loco et tempore against the 
one who had pleaded ' not guilty/ 
On 19th July a bill of suspension and liberation was 



248 CASES BEFORE THK HIGH COURT 

No. 54. presented to Lord Neaves, which was granted, on the 

and othen suspenders respectively finding caution that they should 

*" ■ *? ■ return to prison, and undergo the remainder of the 

.Nov. 24. period of imprisonment under the sentence complained 

1862 ' of, in the event of the suspension being ultimately re- 

lupennon. f uge( ^ um j er tb e penalty of £1 sterling. 

Maclean. — for the suspenders, (1. The proceedings 
had been irregular, as not authorized by the General 
Police Act, under which the complaint was brought, in 
respect there was no proper citation to the complaint ; 
(2.) The whole procedure was oppressive, and operated 
substantial injustice to the suspenders. The rules re- 
ferred to by the respondent were unknown to them. 
Several of them had no one in Court competent to look 
to their interests, and they were not allowed sufficient 
time for communication with their friends — Donaldson 
v. Buchan, High Court, November 18, 1861, Irvine, 
vol. iii. p. 109 ; Graham v. Linton, High Court, Novem- 
ber 24, 1856, Irvine, vol. ii. p. 558 ; Crawford v. Blair, 
High Court, November 17, 1856, Irvine, vol. ii. p. 
611 ; Gray v. M'Gill, High Court, February 27, 1858, 
Irvine, vol. iii. p. 29 ; Robertson v. Mackay, High Court, 
July 21, 1846, Arkley, p. 114 ; Blyths v. M'Bain, High 
Court, February 20, 1852, J. Shaw, p. 554 ; Ritchie v. 
Pilmer, High Court, December 20, 1848, J. Shaw, 
p. 142. 

Clark, for the respondent — The proceedings had 
been quite regular, under the 86th section of the 
General Police Act, and the rules framed under the Act 
for the burgh of Dumbarton. The whole procedure, 
particularly that in Court, had been perfectly formal. 
The Act and regulations were expressly framed for the 
purpose of summary apprehension and trial : but they 
allowed delay on cause shown, if demanded by the ac- 
cused, which had not been done in this case. 

Lord Cowan. — This sentence is now sought to be sus- 
pended upon two grounds. The first of these is, that 
there was a departure from the legal procedure author- 



AND CIRCUIT COURTS OF JUSTICIARY. 249 

ked by the General Police Act, under which the com- No. 54. 
plaint proceeded, inasmuch as the accused were not duly »nd othen 
cited to answer the complaint. I do not think that, *, hCo ^l 
apart from the peculiar circumstances of this case, the Nov, 24. 

proceedings were in violation of the Act. In the case ^— 

of a party of full age, it is quite competent to read the 
complaint to him when at the bar, and if he does not 
ask for time, to proceed with his trial at once. There- 
fore, so far as regards the alleged departure from regular 
procedure, I think there is no room for touching this 
conviction. But the peculiarity of this case is, that the 
accused were, with one exception, of very tender years, 
the age of the youngest being eight, and admittedly not 
more than nine. The very statement of the fact that a 
boy of such years is at once put on his trial in the above 
way, strikes one as bearing oppression on the face of it. 
The hurried and oppressive character of the proceedings 
is inconsistent, to my mind, with the due course of jus- 
tice. I agree with the views expressed by Lord Ivory 
in the cases which have been quoted to us, that in cir- 
cumstances like the present, where the parties are law- 
biding and not likely to abscond from injustice, time 
should he given them. They are not even informed at 
their trial that they may ask for time. There is no law- 
agent present to support their claims. They are instantly 
questioned. The complaint in such a case should have 
been served upon them, that their parents might have 
had an opportunity of seeing it, and advising with a 
professional person if so inclined ; and I cannot imagine 
anything more improper than to put a boy of eight 
years in the position of answering to such a complaint 
without advice. It was the duty of the magistrate to 
have intimated to them that they could have had delay. 
But no, they are instantly tried and instantly sentenced 
to fifteen days' imprisonment. For what ? Stealing a 
few strawberries ! The boys here are all in the same 
class, as respects age, with the exception of Macfarlane. 
Had he stood alone in this case, I would have had moro 



250 CASES BEFORE THE HIGH COURT 

No. 54. difficulty in suspending the sentence; but I am not 

and others satisfied that his case can be separated from the rest. 

ftC ay ' I am. therefore, of opinion that this sentence should be 

High Court. ' . r 

Not. 24. quashed. 
1862 ' Lord Deas. — I am very much of the opinion ex- 



pen810n ' pressed by Lord Cowan. There are here two grounds 
of suspension : — Incompetency and oppression. I agree 
that, in certain circumstances, there is no absolute in- 
competency in proceeding summarily as was here done. 
I think the Statute gives the power, with a view to 
certain exigencies, but not with a view to the power 
being exercised in all cases. It is a power to dispense 
with the usual deliberation and forms of procedure, — 
not a mode of procedure which is directed or prescribed 
to be followed. The ordinary course by service of a 
complaint is not done away with or superseded. That 
course, I think, is intended to be the ordinary course, 
still, although a more summary mode may be followed 
where the ends of justice require this to be done ; as, for 
instance, with vagrants and known thieves who have no 
proper locality, and would be off at once if not taken up 
and detained in custody It is true that even these 
persons might be served with a complaint. But this 
would require to be done in jail, and the time thus given 
to them would require to be spent in jail ; so that the boon 
would not be favourable to the liberty of the subject. 
There may be reasons of expediency to warrant proceed- 
ing somewhat roughly in some cases, although not in all. 
If the dispensing power — for as such I regard it — is 
acted on without its being necessary to act on it, great 
care must be taken that there are no grounds for suspect- 
ing injustice in the result, otherwise the proceedings 
may be set aside on the ground of oppression. I think 
they fall to be set aside on that ground hera There 
was no necessity at all for the course which was followed, 
and there are strong grounds for doubting whether jus- 
tice has been done. The case against the only boy who 
had his father present, and consequently pleaded not 



AND CIRCUIT COURTS OP JUSTICIARY. 251 

guilty, was at once given up. This is a significant fact, jjjjjj^ 
The ages of the others, who were seven in number, » n <* othen 
varied from eight to thirteen, with one exception, which H . hCp ' 
I shall immediately notice. The boy of eight is said to Nov. 24. ' 

have had an elder brother present. How much older - — 

that brother was, is not stated. He does not seem to 
have taken any part in the proceedings. He was 
merely one of the audience ; and it is not said he had 
any more knowledge than the boy of eight of the forms 
of procedure or the right to ask delay. None of them 
were told that they might ask and obtain delay. The 
mother of one of the boys is said to have been there. 
She would not likely be a great lawyer any more than 
the married woman whose sentence was set aside in the 
case of Graham. The proper course would have been to 
have served complaints on the boys at their parents' 
houses, so that advice might be taken, and they might 
be properly defended. They were all law-abiding, — the 
sons of honest and known parents living in Dumbarton, 
— and there was no risk of them absconding. The 
fathers of some of them were working-men who had 
probably to be at their work that Monday morning 
when the seven boys were brought up, and all of them, 
in five minutes, convicted of theft by a sentence which 
would ever afterwards attach to and stand against them. 
I do not think that all this was compatible with reason- 
able security against injustice being done. The case is 
stronger against the sentence than some of those in the 
books, which were cases of grown-up persons. The only 
room for doubt is as to the boy of sixteen. But he was 
dealt with, not separately, but as one of a class. He 
was law-abiding like the rest ; and on the whole, I am 
not disposed to deal differently with his case from that 
of the others. 

Lord Ardmillan. — I am of the same opinion. I 
have had considerable difficulty about the case of the 
boy of sixteen ; but on the grounds that have been 
stated with regard to his case, I agree that the suspen- 



252 CASES BEFORE THE 1IIOH COURT 

No. 54. gion should also apply to the sentence against hiin. It 
and others is no objection to this suspension that the boys pleaded 
^ — — guilty. The procedure in this case is such, I think, as 
&v. 24. " the Court should look upon as not ordinary, but ex- 
]862 ' - ceptional. It was competent, but only on the principle 
la that exceptional proceedings are competent for an excep- 
tional class of cases. It is not appropriate to the case 
where the parties against whom it is taken are law- 
biding, and not fleeing from justice ; and in such a case 
it involves an encroachment on the ordinary principles 
of our law, which surrounds the person of every subject 
with protection against injustice and oppression. All 
the circumstances of this case, that the accused were 
children of known parents residing in the neighbour- 
hood, that the reading of the complaint in Court was 
the first they heard of it, that they were not properly 
assisted in their defence by parents or otherwise, com- 
bine to show that this was an arbitrary and exceptional 
proceeding. But it is said that the trial could have 
been postponed had they wished delay. Did these boys 
know their right to have done this ? The maxim, 
ignorantia juris neminem ewcmat % is true ; but I demur 
to its application to a child of eight years, and I have 
no hesitation in quashing the sentence. 

Lord Neaves. — I am extremely sorry to differ from 
all the Judges who have given their opinion, but I am 
unable to discover any legal ground on which this sen- 
tence should be set aside. Magistrates have power to 
order apprehension or citation. The adoption of either 
of these alternatives is in the discretion of the magis- 
trate. I cannot discover any other principle on which 
he must proceed, and he must be left to the exercise of 
this discretion. It is the opinion of all your Lordships 
that the course taken here was competent. The magis- 
trate had power either to cite or apprehend, and for us 
to attempt to say in which case he should do the one, 
and in which the other, is, I think, beyond our pro- 
vince. Even if the boys were improperly apprehended 



AND CIRCUIT COURTS OF JUSTICIARY. 253 

on the Sunday, they were properly re-apprehended on No. 54. 
the Monday, and tried in accordance with the rules of and others 
law and the regulations of the Court. The proceedings ^. hCo ^ 
on Sunday were, I think, neither oppressive nor unjust. ««*• * 4 - 

The parents and friends of the boys were in communica- r r— 

tion with them, and they were bailed out by them. 
The only relevant consideration that appears to me to 
favour this suspension is, that some of the boys were of 
tender years, and, with one exception, all under four- 
teen ; and I perfectly adopt the principle that, in such 
circumstances, their parents and guardians should have 
had knowledge of what was doing with regard to them. 
But it appears to me that they had so in this case. As 
regards the lad of sixteen, he was undoubtedly mi juris ', 
and I cannot see any ground upon which the conviction 
against him can be set aside. At the same time, I do 
not much regret the result at which your Lordships 
have arrived ; because I do not think this conviction 
should ever have been sought, or such a sentence been 
pronounced. 

Lord Jerviswoode. — I should be sorry to be supposed 
to entertain any approval of the sentence pronounced in 
this case ; but I can see no sufficient legal grounds for 
suspending it. Lord Neaves has so fully expressed the 
grounds of my opinion, that I content myself with in- 
timating my agreement with the reasons he has given, 
and the result at which he has arrived. 

Lord Justice-Clerk. — A majority of your Lordships 
being in favour of suspending this sentence, I have no 
vote. I should withhold my opinion, therefore, if I 
thought the result affected no interest beyond that of 
the parties here. But I confess I have considerable 
apprehensions, as to the effect which your Lordships' 
judgment may have, which induce me to state the view 
that I take of this matter. It seems to me, that when 
it is conceded that the whole procedure under the com- 
plaint is perfectly competent and regular under the 
Statute, all that is left for the suspender is to make 



254 CA8ES BEFORE THE HIGH COURT 

No. 54. ou t a case of oppression in the use of this competent 
and others procedure. I cannot at all concur in the view suggested, 
*° y ' that the summary form of process, made competent by 
Not. 24. " the Act, and here adopted, is not intended to be applied 
■ to law-biding persons. I find no such distinction in the 
' Act, and I rather apprehend that what is complained 
of in this case as great hardship would be held a still 
greater hardship if the persons were not law-biders. 
The great hurry and expedition, and the summary form 
of process, would, to my mind, involve greater hardship 
in the case of a vagrant or stranger. Observe what the 
proceeding is which the Act authorizes. The police- 
constable goes to apprehend these boys on Sunday 
evening, on a charge of theft committed that day. The 
86th section of the Act justifies this, and I cannot 
understand why a resident in Dumbarton (which I take 
to be what is meant by a law-biding person) is not 
to be apprehended, under that clause, on reasonable 
suspicion of crime being entertained against him. Well, 
if the apprehension of the boys was competent, surely 
it was a proper and competent thing to admit them 
to bail. It is stated as a very prominent point in 
this suspension, that they had been apprehended on a 
charge of theft, so that they and their parents knew 
precisely what they were accused of. They were not 
secluded from assistance. They came up on Monday 
morning and pleaded guilty. All that was competent. 
The complaint was not incompetently made that morning, 
but it is said that because they were law-biding, the 
complaint should have been served. But why ? Are 
they to get delay because they are law-abiders ? Are 
they entitled to greater justice than vagrants or habit 
and repute thieves ? There is no distinction made in 
the forms of trial of such parties, and a distinction could 
not be justified on good grounds. Thieves and vagrants 
could not escape from custody. Therefore there is no 
more reason for speed with regard to them than others. 
It seems to me, therefore, that the summary procedure 



AND CIRCUIT COURTS OF JUSTICIARY. 255 

is intended for all persons at the discretion of the magis- jjjjj^ 
trate. The question remains, Were there any reasons, "Jj^ 6 ™ 
from the fact of these children being under age, why the ^. hCourt 
trial should not have proceeded oil that Monday, and No 8 v - 24w 
adjournment should have been made ? It seems to me SliapeDa | ^ 
that the only ground for such a contention in their 
favour would be, that they were not in the hands of 
their natural protectors or lawful guardians. But it is 
disclosed on the face of this suspension, that they were 
so from beginning to end, and there is no suggestion 
that at any time they were not so. I am sorry, there- 
fore, I cannot concur with your Lordships in suspending 
this sentence. There appears to me no legal objection 
to it ; and though I quite agree that this is a sentence 
which we could wish had never been pronounced, I 
cannot let that feeling lead me to the conclusion that 
there has been any oppression here, when, in point of 
fact, it is only too severe a punishment for a trivial 
offence. 
The sentence was accordingly set aside with expenses. 

John Leishuin, W.S. — Murray and Brith, W.S. — Agents. 



GLASGOW WINTER CIRCUIT. *>?•«• 

Judge — Lord Cowan. 
Her Majesty's Advocate — Thorns A.D. 

AGAINST 

James Wilson, George Wardrop, and Isabella Smith — Cowan 

— Balfour. 

Evidence — Statute 15th and 16th Vict. c. 27, sect. 4 — Pro- 
cedure. — Held incompetent to recall a witness who had been exa- 
mined, for re-examination by the Crown, to answer a question in 
connection with a statement by a subsequent witness, in respect the 
subject-matter of the question was admitted by the Advocate- De- 
pute to have been in his precognition. 



1862. 



Assault. 



256 CASES BEFORE THE HIGH COURT 

Jam"' ^ HE P* ^ 8 were charged with assault, to the effusion 
Watson of blood and serious injury of the person, committed 

upon George Miller, puddler, at a bridge over the Cad- 

D«a 23. zow burn, near Hamilton. They pleaded ' Not Guilty/ 
• and the case went to trial. Bridget Queen, a witness 
for the prosecution, having deponed that she saw George 
Miller lying in the burn, and heard him call out, ' Oh ! 
( Johnny O'Brien, did you leave me ? the Advocate- 
Depute proposed to recall the said George Miller, under 
15th and 16th Vict. c. 27, sect. 4, for the purpose of ask- 
ing him whether he knew one of the prisoners by that 
name. 

This was objected to on behalf of the prisoners. 

Lord Cowan. — I do not think I can allow this. It 
ought to have been matter of examination when the 
witness was first called, unless the Advocate-Depute can 
say that the subject-matter of the question was not in 
the precognition of the witness, Queen, and that it had 
taken him by surprise. 

The Advocate-Depute having admitted that the name 
spoken to had been in his precognition, and did not 
come upon him by surprise, the Court refused to allow 
the witness, Miller, to be recalled. 

The jury returned a verdict of ' guilty/ with a re- 
commendation to mercy on the ground of provocation, 
against the male prisoners, and of € Not Proven/ by a 
majority, in the case of Isabella Smith. Sentence, 
eighteen months' imprisonment. 



Jan 5. 
18G3. 



AND CIRCUIT COURTS Olf JUSTICIARY. 267 

HIGH COURT. 

Present, 

The Lord Justice- Clerk, 

Lords Deas and Ardmillan. 

Alexander Mitchell, Suspender — J. C. Thomson. 

AGAINST 

Robert Campbell, Respondent — A. R. Clark. 

Suspension — Locus — Night- Poaching Act, 9th Geo. IV. cap. 69, 
sect. 1. — Indictment — Relevancy — Amendment. — A Conviction 
under the Night- Poaching Act suspended, on the ground, (1.) That 
the* complaint was irrelevant, in respect the description of the loots 
was unintelligible and insufficient, having been set forth as being in 
two separate parishes ; (2.) That the offence charged of entering or 
being on land for the purpose of destroying ' game or rabbits/ was 
not a relevant charge under the Statute, and that, after the panel 
had pleaded to the libel as originally framed, the libel could not be 
amended by the deletion of the words * or rabbits,' which would 
have been a relevant charge. 

This was a suspension of a conviction by the Sheriff- No. ss. 

\M'i U II 

substitute of Stirlingshire, pronounced in a prosecution campbeiK 
under the 1st section of the Night- Poaching Act, 9th High Court. 
Geo. IV. c. 69, at the instance of the respondent as Pro- ^ei' 

CUrator-fisCal. Suspension. 

The complaint set forth — 



' That' the suspender, * now or lately residing at Saltpans, in the 

( parish of Dunipace and county of Stirling, and presently in custody, 

1 had been guilty of the crime or offence second set forth in the first part 

' of the Statute before recited, actor or art and part, in so far as he did 

1 by night, that is to say, between the expiration of the first hour 

' after sunset and the beginning of the last hour before sunrise, on the 

( tight of Saturday last, the 6th, or morning of yesterday, (Sunday), 

' the 7th days of December 1862, unlawfully enter or be in a field or 

P*rk commonly called or known as Wester South Park, forming 

part of the lands of Househill, in the parish of Dunipace aforesaid, 

VOL. IV. R 



258 CASES BEFORE THE HIGH COURT 

Mitchell * the F ro P ert y of the trustees of the late Sir Gilbert Stirling of Mans- 

Campbell. 4 field, and in the parish of Larbert and count j of Stirling, with two 

High Court. * dogs and witha net which he had hung or affixed to a gate leading 

Jan. 5. < into the said field or park, for the purpose of taking or destroying 

L_ * game or rabbits.' 

Suspension. 

When the case was called before the Sheriff-substitute 
(the prisoner having pleaded € Not Guilty' on the pre- 
vious day at a pleading diet), certain objections to the 
complaint were stated on his behalf. The Sheriff-sub- 
stitute repelled the objections ; and after trial, the sus- 
pender was found guilty and sentence was pronounced. 
The following is the minute of the procedure before the 
Sheriff-substitute : — 

1 At Stirling, the 9th day of December 1862 years — Compeared 
* Alexander Mitchell complained upon, who adhered to his former plea ; 
4 and Hill, for the accused, objected to the relevancy of the complaint, 
4 on the ground, 1st, That the offence charged is not under the Sta- 
4 tute ; 2d, That the offence under the Statute is the entering to take 
4 game unlawfully ; here, game or rabbits ; 3d, Entering to take rtb- 
4 bits is not an offence under the Statute, and entering to take game 
4 unlawfully not charged. 

4 To which it was answered by the Procurator-fiscal, If I prove ^urn* 
4 under the Statute, I do not require to say anything or lead any proof 
4 further. The words 4 or rabbits' are mere surplusage, and do no harm, 
4 but I will strike them out. 

4 The Sheriff-substitute allows the Procurator-fiscal to delete the 
4 words 4 or rabbits' from the complaint ; and that being done, repels 
4 the objections stated to the relevancy.' 

Thereafter certain witnesses were examined upon 
oath in support of the complaint, and the following 
sentence was pronounced : — 

4 The Sheriff having considered the evidence adduced, finds the 
4 panel, Alexander Mitchell, guilty of entering or being in the park 
4 libelled, at the time libelled, with two dogs and a net, for the pur- 
4 pose of taking or destroying game, all as libelled ; and therefore 
4 decerns and adjudges him to be imprisoned in the prison of Stirling 
4 for the space of two calendar months from and after this date, there 
4 to be kept to hard labour; Further, ordains the said Alexander 
4 Mitchell to find sufficient caution,' &c. 

Mitchell having been imprisoned under the above 
sentence, brought the present suspension and liberation. 



• AND CIRCUIT COURTS OF JUSTICIARY. 259 

J. C. Thomson, for the suspender, argued, (1.) The ^^ 
locus delicti was set forth in a confused, erroneous, and Cwp)»H; 
unintelligible manner, the field where the offence was Hi j[i 1 n Ci, 5 " rt ' 

stated to have been committed being described in the L 803 __ 

complaint as ' a field or park commonly called or known Su8 P en8ion - 
' as Wester South Park, forming part of the lands of 
' Househill, in the parish of Dunipace aforesaid, the pro- 
' perty of the trustees of the late Sir Gilbert Stirling of 
' Mansfield, and in the parish of Larbert and county of 
' Stirling.' The field was thus stated to be wholly in 
two distinct parishes, which being impossible, the state- 
ment was to be taken as, in law, equivalent to the 
libelling of a place which has no real existence. (2.) 
The offence charged 1 of entering or being in land for the 
purpose of destroying game or rabbits was not a relevant 
charge under the Statute ; and it was incompetent for 
the Sheriff to allow the Procurator-fiscal to amend the 
complaint by deleting the words * or rabbits.' The com- 
plaint being under the second part of the first section of 
the Act, the offence thereby constituted was not com- 
mitted, and the penalty was not incurred by being in a 
field, &c., * for the purpose of taking or destroying rab- 
1 bits.' Accordingly, when this was charged, the statu- 
tory offence was not charged, and the libel was irrele- 
vant But a bad libel could not be converted into a 
good one by any change made after the panel had been 
placed at the bar ; more particularly when, as in the 
present case, the alteration was made after the accused 
had pleaded to the charge as originally framed — Smith 
v. Young, High Court, March 18, 1856, Irvine, vol. ii. 
p. 402. The conviction had not a specific statement, 
or at least did not affirm the terms of the complaint with 
sufficient distinctness, in regard to the charge of ' being 
' with a net.' The accused was charged in the complaint 
with having hung or affixed a net to a gate leading into 
the field libelled, but the conviction found it proved that 
he was ' with a net.' (4.) The sentence was not dated. 
The only date was the one at the outset of the minute 



260 CASES BEFORE THE HIGH COURT 

No. 56. of procedure, and applied to the interlocutor imme- 

Mitchell »•-!•..■««. i * «■ 

Campbell, diately following, and could not be held to apply to the 
HiKh Court sentence. Although not tied down to the form of con- 
1863. viction given in the Statute, the Sheriff was bound to 
Suspension, follow it in all essential particulars ; «and there the date 
was set forth with precision both at the beginning and 
the end. (5.) The conviction was bad, in respect the 
word ' unlawfully* had been omitted from the sentence 
pronounced by the Sheriff-substitute. There were three 
elements constituting the statutory offence here charged 
viz., (1.) unlawfully entering or being on lands by 
night ; (2.) being possessed of an instrument of the 
kind described ; and (3.) having the purpose of taking 
or destroying game. Any one or any two of these was 
insufficient to constitute the statutory offence without 
the third ; and although a prisoner were found guilty 
of the two last, yet unless he were found guilty of being 
unlawfully on the lands, i.e., of trespassing, he was not 
liable in the statutory penalty. A proprietor could not 
be found guilty under this Statute, nor the game tenant, 
nor even a labourer who had the express permission of 
the proprietor to pass over his ground after nightfall, 
because such persons could not be unlawfully on the 
lands. The omission of the word ' unlawfully* from the 
sentence was the ground upon which the Court went in 
setting aside the conviction in the case of Smith v. 
Young. 

The Court intimated an opinion that the third and 
fourth grounds of suspension could not be sustained, and 
directed the respondent's counsel to address himself to 
the others. 

Clark for- the respondent, answered — there was set 
forth in the complaint a good and sufficient description 
of the locus, as the ' parish of Larbert' must be read as 
applying to ' Mansfield/ the place mentioned imme- 
diately before it. The place was clearly distinguished 
from all others, and that was sufficient. Further, this 
was an objection to the complaint which had not been 



AND CIRCUIT COURTS OF JUSTICIARY. 261 

stated in the Court below, and could not now be plea- No. 56. 

i t mi i • A . , , i . i , Mitchell t 

ded. The objection to the complaint on the ground Campbell, 
that the words ' or rabbits' were added to the charge, HighCoart. 
could not be sustained, as these words did not affect the mm." 
former part of the charge which referred solely to game, s^nsum 
and which could be competently proved indepen- 
dently of the words ' or rabbits.' Further, they were 
evidently inserted in the complaint merely per incuriam, 
and the Procurator-fiscal was entitled to delete them, 
seeing that they in no way affected the statutory offence 
which he undertook to prove. Neither was the omission 
of the word 'unlawfully* from the sentence a good 
ground of suspension. That word referred to the pur- 
pose for which the lands were entered, and, besides, it 
must be understood in the sentence in the present case, 
as it was undoubtedly implied in the words ' all as K- 
1 belled.' 

The Lord Justice-Clerk. — There are two objections 
to this conviction, which appear to me to be fatal. 
The first objection that the locus is not sufficiently 
described, appears to me to be well founded, and it is of 
no consequence that it was not stated in the court below. 
The description is inconsistent in its terms, and it is in 
fact impossible to read it. The second objection stated 
by the suspender is more formidable and substantial. 
The libel charged the accused with having entered 
upon a certain night the park called Wester South 
Park, for the purpose of taking or destroying game 
or rabbits. An objection was taken in the Court 
below to the libel, in respect that that was not a good 
charge under the first section of the Act. I think that 
objection well founded, and that the alternative charge 
there introduced of unlawfully entering the land during 
the night for destroying game or rabbits, was a bad 
alternative charge under the Act of Parliament. The 
first section of the Act, under which the suspender 
was convicted, consists of two branches — the second 
branch on which alone the libel is laid, being di- 



262 CASES BEFORE THE HIGH COURT 

MuSi S ?f rec ' e ^ bg*™^ persons who unlawfully enter, or be upon 
Campbell land at night with implements for the purpose of taking 
High Court, or destroying game, omitting the alternative wonk, ' or 
1863. ' rabbits/ By striking out the words ' or rabbits 1 in 
Suspension, the lower court, the complaint charged the accused with 
a good statutory offence, whereas, as it stood, it was not 
a good one. Such an alteration of the complaint I hold 
to be quite incompetent without the consent of the ac- 
cused. There is nothing upon the face of the minutes 
of procedure to indicate that he acquiesced in the least 
degree in the objection he had taken to the first com- 
plaint, being obviated in an off-hand way. The accused 
had no opportunity of repeating his objection, for imme- 
diately on the interlocutor of relevancy being pro- 
nounced, the Procurator-fiscal was called on to lead his 
evidence. The accused was not asked to plead again to 
the amended libel, and he had no opportunity of re- 
newing his objection in any other form. I therefore 
think that this second objection is a good one also. The 
last objection, on the ground that the word 'unlawfully' 
has been omitted from the sentence is not without diffi- 
culty ; but it is not necessary to enter upon it in the 
present case, as upon the first two objections stated by 
the suspender, we have enough to quash this conviction. 
Lord Deas. — I concur. The first objection to the 
description of the locus is sufficient to set aside this con- 
viction, as the libel cannot be read intelligibly. By no 
twisting of the words employed can the field be taken 
to be described as partly in each of the two parishes 
mentioned ; and, if it be wholly in one of them, it is 
impossible to say in which of them. There is here a 
blundered description, which cannot be said to be an 
objection merely in point of form, but goes to the sub- 
stance of the complaint. With reference to the second 
objection, the purpose of entering or being in the lands 
must by statute be the taking or destroying of game; 
but the suspender was charged here with being in the 
field libelled in pursuit of game or rabbits. The deletion 



AND CIRCUIT COURTS OF JUSTICIARY. 263 

of these two last words by the fiscal was not of the **°; 6 ,*- 

" . Mitchell r. 

nature of a partial restriction, or mere correction of the Cwnpbeii. 
libel, for if the libel had stood as it was, no crime was HijhCmm. 
charged. The suspender was entitled to assume that, 1863.' 
if he could show that the pursuit of rabbits was not Suspend, 
within the Statute, there was an end of the charge, and 
that he need not come prepared to defend himself 
against a different libel. There was no consent on his 
part,— express or implied, — so for as I can see, to this 
alteration. That might have presented to us a very 
different case. For, in place of a benefit, it is very 
often a great hardship to a prisoner, who is prepared 
with his defence on the merits, that his trial cannot pro- 
ceed till a new libel shall be served ; and I should be 
slow to lay it down that there may not be a waiver of 
such an objection as occurred here where the ends of 
justice are not interfered with. Neither do I say any- 
thing of minor corrections, even without consent, which 
neither change the libel nor put the prisoner to any 
possible disadvantage, and which can only be judged of 
by their own circumstances. According to the view I 
have taken, it is unnecessary to dispose of the further 
objections pleaded for the suspender. 

Lord Ardmiixan. — I am of the sam$ opinion. I 
should have had some reluctance in setting aside this 
conviction on the first ground, which evidently arose 
from an oversight on the part of the respondent ; but I 
think that in the second objection we have a good and 
substantial ground of suspension. As this complaint 
at first stood, there was not a good and relevant offence 
charged under the Statute, and there is not on the face 
of the procedure any necessary implication of consent to 
the alteration of the libel on the part of the accused. 

The following interlocutor was pronounced : — € Find 
' that the complaint was irrelevant, in respect the de- 
scription of the locus is unintelligible and insufficient, 
' and in respect the offence charged of entering, or being 
' in land for the. purpose of destroying game or rabbits, 



264 CASES BEFORE THE HIOH COURT 

No. 56. * was not a relevant eharge under the Statute, and that 

Campbell! ' the libel could not be amended by the deletion of the 

High court- ' words 'or rabbits/ and the trial then proceeded with, 

1863.' ' without the consent of the accused : Therefore pass 

Suspension. ' the bill, suspend the sentence complained of simpliciter, 

€ ordain the suspender to be forthwith set at liberty, and 

' decern : Find the suspender entitled to expenses/ &c. 

Charlks Ritchie, S.S.C. — Morton, Whitehead, and Gaxio, W.S. — Agents 



Charles Trainer, Suspender — Qifford — W. A. Brown. 



AGAINST 

David Johnston, Respondent — Lord-Advocate Moncreiff—Fraser. 

Suspension — Statutes 2d and 3d Will. IV. c. 68 (Day-Trespass 
Act), and 25th and 26th Vict. c. 114 (Poaching Act) — Oath.— 
In a prosecution under the 2d section of the Act 25th and 26th 
Vict., which refers to section 11 of the previous Act, 2d and 3d 
Will. IV. c. 68, it is necessary to charge the offence, and without 
such charge made de presenti by the constable apprehending, in the 
statutory deposition upon oath, the Justice cannot competently 
issue a warrant of citation. Conviction on a complaint proceeding 
on a deposition* where this had not been attended to— suspended. 

No. 57. This was a suspension of a conviction obtained before 
Johnston.' & Justice of Peace Court in the Stewartry of Kirk- 
High Court, cudbright, on a complaint under the Poaching Act, 25th 
1863/ and 26th Vict. cap. 114, sect. 2, which provides that any 
Suspension, constable or police-officer having good cause to suspect 
any person of coming from lands where he has been un- 
lawfully in pursuit of game, may search him, and find- 
ing such game, is to apply to the Justices for a warrant 
citing such person to appear before the Justices to 
answer to the charge, and the Justices, if the charge 
shall be established, shall inflict a penalty of £5, and 
order the nets and other implements to be destroyed or 
sold. 



AND CIRCUIT COURTS OF JUSTICIARY. 265 

On 6th November, 1862, the suspender and another T No . # D 2/ 
person of the name of Grant, while proceeding on the Johnston, 
road from Kirkcudbright to Mutchill, were searched on Hi ^^ lrt " 
the highway by two policemen, who found upon them 1863. 
certain game and implements for seizing game. The Suspension, 
policeman, on 13th November following, proceeded be- 
fore one of the Justices for the Stewartry of Kirkcud- 
bright, and made oath ' that having good cause to sus- 
' gpect' the suspender and Grant ' on the 6th of Novem- 
1 ber, of coming from certain specified lands where they 
bad been unlawfully in search or pursuit of game, and 
having in possession of each of them game unlawfully 
obtained, they searched them on the highway above 
mentioned, and found certain game and implements for 
obtaining game in their possession. Tn respect of these 
oaths, a Petition and Complaint at the instance of the 
respondent, the Procurator-fiscal of the Court, was pre- 
sented against the suspender and Grant, who, after trial, 
were found guilty by the Justices, and sentenced to pay 
a fine of £5, with £5, Os. 8d.' of expenses, for which 
they were found jointly and severally liable. 

Gifford and W. A. Brown, for the suspender, argued 
— That the conviction should be set aside, because (1.) 
the proceedings were at the instance of the Procurator- 
fiscal, whereas, by the Act founded on, the title to pro- 
secute was conferred upon the constable apprehending. 
It was true that the Act 2d and 3d Will. IV. c. 68, 
which gave the Fiscal right to sue in such matters, was 
made applicable to the present Statute, but it was only 
so in regard to the recovery and enforcement of penalties. 
In the event of it beii^g held that the proceedings were 
rightly brought by the Procurator-fiscal, it was main- 
tained that they were defective, in respect the oath of 
the constables did not charge the offence, as required 
by section 11 of the Act, the oath actually made amoun- 
ing only to a statement of suspicion, and that certain 
things were found. (2.) While various objections were 
stated to the relevancy and competency of the proceed- 



266 CASES BEFORE THE HIGH COURT 

No. &7. ingg before the Justices, they had failed to authenticate 

johnaton. according to law, by the signature of two Justices, the iri- 

HijhCourt. terlocutor repelling these objections. (3.) No record had 

1863.' been made by the Justices of the evidence adduced at 

Suspension, the trial, whereas, although review on the merits was 

excluded in the High Court, there was still a right of 

appeal to the Quarter Sessions, which contemplated a 

review of the merits. (4.) In the clause of the recent 

Act founded on, there was nothing said about expenses, 

in addition to the penalty imposed as a fine, and in the 

absence of any such provision it was ultra vires of the 

Justices to award expenses. (5.) At any rate, it was 

ultra vires of the Justices to award expenses, as had been 

done in the present case, jointly and severally. 

Counsel for the respondent having been directed by 
the Court to speak with reference to the pleas in regard 
to the insufficiency of the oath, and to the award of 
expenses jointly and severally — ' 

' The Lord Advocate and Fraser argued — That no 
oath was necessary to be emitted on the part of the 
constable at all. All that he was required to do was to 
apply to the Justices for a summons citing the party 
searched to appear before them. That was regulated 
by section 2 of the Act 25th and 26th Vict., and the 
section of the Act 2d and 3d Will. IV., providing that 
the offence should be charged by a party upon oath, was 
not necessarily made applicable to the recent Act. At 
any rate, the oath was in itself perfectly sufficient. It 
distinctly averred that having good cause to suspect the 
parties of having been unlawfully in pursuit of game 
upon certain lands, they searched them, and found cer- 
tain game, as there specified, in their possession. It 
was mere sophistry to say that that was not substan- 
tially a charge of the offence ; but whether a charge of 
the offence or not, it was all that was necessary under 
section 11 of the Statute. In regard to the last plea, it 
was maintained that the act libelled was a joint act, 
and that it was just as competent in a criminal prose- 



AND CIRCUIT COURTS OP JUSTICIARY. 267 

cution to award expenses jointly and severally as it was *£• 5 *« 
in a civil suit, where joint defenders could notoriously Johnston*, 
be so made liable. High Court 

The Lord Justice-Clerk. — I think the objection to ibbs.' 
the insufficiency of the oath well founded, and there- suspension 
fore it is not necessary to dispose of the other ob- 
jections which have been, urged by the suspender's 
counsel. In regard to the manner in which offences 
shall be prosecuted under the recent Act, the previous 
Act of Parliament, 2d and 3d Will. IV. c. 68, is made 
applicable, particularly in respect of the clause provid- 
ing that the offence shall be charged on the oath of a 
credible witness. I cannot read the oath emitted in the 
present case as an oath of credulity. It was emitted a 
week after the apprehension and search by the con- 
stable, and does not import that when emitted the 
constable tlien believed the parties to have been unlaw- 
fully in pursuit and possession of game, and thus does 
not amount to a charge of the offence, as is required by 
section 11 of the Statute. Without such an oath 
charging the offence, the Justices would not be justified 
in issuing a warrant of citation. 

Lord Deas. — I am entirely of the same opinion. I 
think that section 11 of the Act 2d and 3d Will. IV. 
c. 68, providing that the charge shall be made by the 
oath of a credible witness, is imported into the recent Act, 
and it will not do for the respondent to adopt (as he 
finds it necessary to do) thisjnode of construction as to 
one part of the enactment and repudiate it as to ano- 
ther. The mistake made in the terms of the oath was 
a natural one ; but still it was a mistake. In regard to 
the plea as to joint liability in the expenses of a criminal 
prosecution, I would recommend public prosecutors to 
act upon the safer view suggested by Mr. Barclay in his 
' Digest/ although I give no opinion upon the point 
itself. 

Lord Ardmillan concurred. 

The Court accordingly suspended the conviction ; but 



268 CASKS BEFORE THE HIGH COURT 



\ 



No. 67. in respect the objection as to the insufficiency of the 

Johnston! oath in which the proceedings originated had been taken 

High Court, for the first time at the debate in the High Court, al- 

Jan. 5. 

1863. lowed expenses to neither party. 

Suspension. w g gM ^ S.S.C— Huktke, Blaie, & Cowaw, W.S.— Agents. 



David Robertson, Suspender — Scott, 

against 

The Right Hon. Margaret Baroness Keith and Others, Respon- 
dents — J. O. Smith. 

Suspension — Conviction — Proof in Replication — Procedure.— 
In a prosecution before a Justice of Peace Court for breach, of the 
Day-Trespass Act (2d and 3d Will. IV. c. 68), after the proof on 
both sides had been closed, the presiding Justice made avizandum 
with the cause, and appointed a day for pronouncing judgment. 
On that day the agent for the prosecution moved for leave to lead 
proof in replication, on the ground that he had received no aotice of 
the accused's defence of alibi. The motion was granted, and after 
the proof had been taken in replication, the Justice found the com- 
plaint proven, and convicted the accused. — Held that, looking to 
the time at which the proof in replication was granted, the proceed- 
ing was incompetent. — The conviction set aside accordingly. 

No. 53. This was a suspension of a conviction obtained before 

Robertson r 

v . Baroness a Justice of Peace at Coupar- Angus, on a complaint 
under the Day-Trespass Act. The accused had pleaded 



High Court 



SuBpenaio 



!fan.*. € Not Guilty. 7 Two witnesses were examined for the 

logo 

-prosecution, who deponed, that between 10 and 12 
o'clock of 15th January 1862, he had been found on 
the lands of Meikleour at a rabbit-hole with the imple- 
ments of poaching in his possession ; and on this the 
' agent 6f the suspender declared his proof closed/ and 
signed an jentry in the proceedings to that effect Wit- 
nesses were examined for the defence to prove an alibi 
One said that he had gone with the prisoner, on 15th 
January, to Forfar by the train which left Rosemount 



AND CIRCUIT COURTS OP JUSTICIARY. 269 

Station at 8.30 a.m. ; and after spending the day in No - **• 
Forfar, had come home by the train, leaving Forfar at «. BarontM 
4.30. p,m. Another said he had been drinking with the — ^— 

Hifrh fVmrt. 

prisoner on the 15th in Forfar, and saw him off by the Jan. 5. 
train at half-past four. Lastly, his mother swore that 18g3 ' 
she had met him on the arrival of the train at Rose- p*™ 1011 - 
mount. The record then bore — 'The procurator for 
' the accused declared his case closed ;' and this entry 
followed : — 

4 Coupar-Angus, \lth February 1862. 
* The Justice makes avizandum with the complaint and proof, and 
' appoints this day week at 11 o'clock, within the same place for pro- 
* nouncing judgment. 

(Signed) « M. Murray, J.PJ 

On 2l8t February the agent for the prosecutor sent 
the accused and his agent written intimation that, at 
the meeting of the Court on the 24th, he would move 
for proof in replication. The agent for the accused an- 
swered that the case was concluded, and he would not 
attend. On 24th February, when. the Court met to give 
judgment, the prosecutor moved as he had intimated, 
on the ground that he had received no notice that an 
alibi was to be proved, and that he had been taken by 
surprise. The justice granted the motion, and appointed 
the proof in replication to take place on 3d March. 
The procedure now mentioned took place in absence of 
the accused and of his agent, and no notice of the diet 
of proof was sent. 

On 3d March certain witnesses were examined, who 
deponed that there were no passengers from Rosemount 
Station, on 15th January, by the morning train, or any 
other train, till late in the afternoon ; and that there 
were none from Forfar either for Coupar- Angus or 
Bosemount by the train which left at 4.30. 

The Justice then found the complaint proven, fined 
the prisoner in £2 and expenses ; and failing payment, 
sentenced him to sixty days' imprisonment. 



270 CASES BEFORE THE HIGH COURT 

lutein ^ e P r ^° ner having been put in jail, presented a bill 

p. Baroness of suspension and liberation on the following grounds : — 

Hi ' ' (1.) The proof for both parties having been led and 

J»n.5. ' concluded, and their agents having been heard there- 

€ on, and no further proof having been asked, and the 



Suspension. • 

' case taken to avizandum, and a day appointed for pro- 
' nouncing judgment, it was illegal and incompetent to 
' allow the respondents a further proof. (2.) In the 
' circumstances, it was incompetent and irregular for the 
' respondents to apply for, and for the Justice to grant 
' a proof in replication. (3.) It was incompetent and 
' irregular for the respondents to lead proof without 
' giving the complainer notice thereof, and the Justice 
€ was not entitled to take the said proof into considera- 
' tion. (4.) The pretended judgment and order of com- 
1 mitment having been pronounced upon the evidence, 
' including the said incompetent proof, they are null and 
' void. (5.) The whole proceedings subsequent to allow- 
' ing the proof in replication being irregular, illegal, and 
* unwarrantable, they should be .suspended, and the 
1 complainer liberated as craved/ 

J. G. Smith, for the respondent — The procedure was 
in the circumstances perfectly competent and proper. 
It had not resulted in any injustice to the appellant ; on 
the contrary, the sole grievance was, that a conspiracy 
to defeat the ends of justice had been detected and de- 
feated. When the prosecutor closed his ' proof/ he did 
* not close his case, but his proof in chief, and having had 
no notice of the alibi he was entitled to a proof in replica- 
tion ; otherwise by simply pleading * Not Guilty/ the 
accused could always prevent an alibi from being 
answered. If proof in replication was competent the 
only further question was, Whether the motion had 
been too late ? The Statute provides, that the party is 
to be 'summarily convicted' on legal evidence (sect 1.) 
The Act of 1828, introducing the summary form of 
trial in criminal cases in the Sheriff-Court (9th Geo. IV. 
c. 29, sect. 19), provided that the proof was ' to be taken 



AND CIRCUIT COURTS OP JUSTICIARY. 171 

'in the easiest and most expeditious manner/ The n*58. 
Day-Trespass Act (sect. 15) did not require the strict •. Broom 
observance of forms ; and if the prosecutor was at liberty . 
to take the proof in the easiest and most expeditious !Kn. s. 
manner, surely the Justice was entitled, even at the very l868 ' 
last stage of the case, in the exercise of the general ' 
control which every judge had of the proceedings before 
him, to take such a course as would prevent the Court 
being imposed on. In civil cases a judge had undoubt- 
edly this power. Evidence had been permitted to be 
led, to*8ave a formal objection after both sides had fully 
laid their case before the jury — (Christie v. Thomson, 
21 D. 337). This case was still a depending cause up 
to the date of adjournment. No doubt avizandum was 
said to have been made, but that was an inaccurate ex- 
pression, for avizandum could never be made of a 
criminal case ; it could only be continued to a certain 
day, when the accused might know to be present. The 
Justice might then have returned and said, he had so 
many doubts he could not make up his mind, and re- 
quired further evidence on certain points. Practically, 
nothing further was done here ; and in the whole cir- 
cumstances this conviction ought not to be interfered 
with. 

The Lord Justice-Clerk. — I am not prepared to give 
any opinion as to whether proof in replication is com- 
petent in a proper criminal trial, because, whether com- 
petent or not, I am satisfied that in this case it was not 
asked in proper time. The case on both sides was 
closed ; parties were heard ; the Justice proceeded to 
make up his mind ; and then for the first time the pro- 
secutor proposed to lead a proof in replication. Whether, 
by granting that proof in replication, any substantial 
injustice was done to the accused, I do not inquire. 
But I am perfectly clear that, looking to the time at 
which this demand .was made, the proceeding was ut- 



272 CASES BEFORE THE HIGH COURT 

No. 58. terly incompetent, and the conviction which proceeds 
«. Baroness upon it must be quashed. 
— ^r— Lord Deas. — I do not say whether notice of alibi was 

High Court. . 

Jan. 5. or was not necessary under this Statute, in the same 
„ "— way as it is in the practice of this Court. But, at least, 

Suspension . 

the plea should be disclosed before the prosecutor closes 
his case, so that he may crave an adjournment if he is 
taken by surprise. The only other course consistent 
with the ends of justice, would be to allow a proof in 
replication. It is not necessary here to determine the 
general rule ; because I am clearly of opinion that when 
both parties had closed their case without objection, — 
debated it as a concluded case, — taken the chance of a 
judgment in their favour, — and the Judge had made 
avizandum, — it would be setting aside all rules and forms 
of procedure, after an interval of time, to allow further 
evidence to be led. 

Lord Ardmillan. — I am of the same opinion. I do 
not think it necessary or advisable to indicate an opi- 
nion as to the competency of a proof in replication. I 
shall only say that where notice of alibi is not given, it 
would require great strictness of rule to prevent the 
prosecutor from going into a proof in replication. It is 
quite different from evidence in replication, where notice 
of the defence has been given. The mistake here com- 
mitted by the prosecutor was not in closing his proof 
without meeting a defence of which no notice had been 
given, but in craving judgment on his proof, and then 
asking for further proof when it was too late. 

Conviction set aside, with expenses. 

John Gellatly, S.S.C.—J. & J. Gabdinrr, S.S.C.— Agents. 



AND CIRCUIT COURTS OP JUSTICIARY. 273 



Present, Jan. 17. 

1863. 

The Lord Justice-General, 

The Lord Justice-Clerk, 

Lords Cowan, Deas, Ardmillan, Neaves, and Jeryiswoode, 

Ret. Patrick M'Laughun, Suspender. — A. B. Clark—A. B. Shand. 

AGAINST 

R. Duncan Douglas and William Kidston, Respondents. — 
Sol.-Qen. Young — Lee. 

Witness — Evidence — Confidentiality — Confession to Clergy- 
man — Oath — Contempt of Court — A Roman Catholic Clergy- 
man was sentenced by a Justice of Peace Court to be imprisoned 
lor thirty days for contempt of Court, in so far as he had refused to 
answer a particular question put to him in the course of examina- 
tion as a witness, on the ground, that answering it would lead to a 
violation of his duty by his disclosing information given to him as 
a clergyman by a penitent. — Held, in a suspension, that the wit- 
ness was bound to answer the question, because whether communi- 
cations made by penitents to clergymen were privileged or not — a 
point which the Court abstained from deciding — the question put 
to the suspender did not relate to any such communication, but re- 
ferred merely to matters of fact within his knowledge. 

Observed, that the Justices, who, on the witness objecting to take an 
oath to tell the whole truth, had administered an oath * to tell the 
* truth, and that whatever he said should be truth,' were wrong in 
administering any oath except the ordinary one ; but that, never- 
theless, the witness, who thought the terms of the oath were such 
as to liberate him from answering a particular question, was bound 
to answer it, on the ground that the obligation of a witness to give 
evidence was not dependent on the terms of the oath administered. 

This Bill of Suspension and Liberation was presented No . 59> 
by the Rev. Patrick M'Laughlin, Roman Catholic clergy- jjf ^Jl 
man at Eastmuir of Shettleston, in the Barony parish &f and 
of Glasgow, who was imprisoned by order of a Justice H . hCop 
of Peace for contempt of Court, on the ground that, Jan. 17. 
when examined as a witness at the trial of Terence z '— 

Suspension 

Vol. iv. s 



274 CASES BEFORE THE HIGH COURT 

No. 59. M'Ghee, accused of theft, he refused to answer a parti- 

M' Laugh- * . 

lin «. Dou- cular question put by the Procurator-fiscal. The trial 
ISston. of M'Ghee arose out of the following circumstances : — 
High Court. Terence Ferguson, labourer at Tollcross, near Glas- 
ii8(33.' gow, had enclosed two half-sovereigns in a letter ad- 
suBpeuuon. dressed to his father, who resided in Ireland, and gave 
the letter to M'Ghee to be posted. The letter reached 
Ferguson's father, but without the two half-sovereigns. 
After inquiries had been made at the Post-office, Fergu- 
son received through the post an envelope enclosing a 
pound-note, with the written explanation — ' This is the 
' pound-note you sent to your father, which went 
' amissing/ The police discovered that these words 
had been written by the suspender, and he was accord- 
ingly adduced and examined on oath as a witness at the 
trial of M'Ghee for theft of the two half-sovereigns, on 
11th December 1862, before the Justices of Peace. 

The warrant for the suspender's incarceration bore, 
that he having been examined on oath before the re- 
spondent, Mr. Kidston, a Justice of Peace, as a witness, 

was shown an envelope bearing the post- mark of the Post-office at 
Glasgow, November 23, 1862, addressed to Mr. Terence Ferguson, 
care of Mr. Terence M'Ghee, Tollcross, Glasgow, and was also shown 
a piece of paper with the following words written thereon : ' This is 
* the pound-note you sent to your father, which went amissing,' — he 
deponed that the said address on the said envelope, and the said writ- 
ing on the said piece of paper, are in his handwriting, and that there 
was a one-pound note enclosed in the said envelope along with the 
said piece of paper ; that he sealed the envelope containing the said 
piece of paper and the said one- pound note, but that he did not himself 
put the said envelope and its contents into the Post-office. And he being 
desired to say whether he delivered that sealed envelope and its said 
enclosures to Terence M'Ghee, the accused, to be posted, he, the said 
Patrick M ( Laughlin refused to answer the Raid question, and I (the 
presiding Justice of Peace, Mr. Kidston) having informed him that 
he is bound to answer that question, and explained the consequences 
of his continuing to refuse to answer it, and I having put the said 
question, and required him to answer it, and to state whether the said 
Terence M'Ghee, the accused, is the person to whom he delivered the 
said envelope, and its said contents, to be posted, he, the said Patrick 
M'Laughlin, refused to answer, and persisted in hi* refusal to answer 



AND CIRCUIT COURTS OP JUSTICIARY. 275 

the said question. Therefore, in open Court, and in a summary man* No. 69. 
ner, I, for the said contempt, adjudge the said Patrick M'Laughlin to ^^Sw m 
be committed to the gaol of Glasgow, therein to be detained for thirty glaa and 
days. Kidston. 



High Court. 

In the reasons of suspension the suspender stated, J J^3 7, 
that when called as a witness, he, before any examina- suspension, 
tion was commenced, explained that he had conscientious 
objections to take the oath in the form usually admi- 
nistered, and as proposed to be administered to him. 
He fully and anxiously explained to the presiding Jus- 
tice, in open Court, the grounds upon which he rested 
his objections, being in substance, that, according to his 
conscience, if he were, in the matter before the Court, 
to take an oath which would bind him to answer every 
question which the prosecutor might choose to put to 
him, this might, and probably would, involve a viola- 
tion of his duties as a clergyman and a priest, called 
upon to receive confidential communications from a 
penitent. He at the same time stated — ' I am willing 
' to swear that anything I say shall be truth to the best 
' of my knowledge.' That, after objection by the pro- 
secutor, the presiding Justice agreed to administer an 
oath which the complainer could conscientiously take. 
Accordingly an oath in the following terms was ten- 
dered and taken, viz. : — ' I swear by God I shall tell 
' the truth, and nothing but the truth, and whatever 
' I shall say in this case shall be truth/ No further or 
other oath was thereafter either tendered or taken by 
the complainer. Thereupon the examination of the 
suspender as a witness was proceeded with, and, in an- 
swer to the prosecutor, he stated, that he had addressed 
the envelope containing the one-pound note, and had 
written the accompanying explanation, and that he had 
enclosed the note and sealed the envelope. Being then 
interrogated, r To whom did you deliver it ?' The com- 
plainer declined to answer that question. It would 
have involved a violation of the complainers duty as a 
clergyman, and he must have revealed a confidential 



276 CASES BEFORE THE HIGH COURT 

No. 59. communication from a penitent had he answered the 

M'Laugh- 

.m t. Dou- question put to him. The oath he had taken did not 
ftidiitoD. require him to answer that question, and he was re- 
High court, quired to take no other oath. He adhered to his de- 
1863.'" clinature to answer the question. After considerable 
Suspension, discussion, the Court adjourned till Thursday the 11th 
December, in order that the complainer might reconsi- 
der the position in which he was placed. 

On Thursday the 11th December, the case being again 
called, the question was put — € Whether he had given 
' the letter containing the one-pound note to the ac- 
* cused party, Terence M'Ghee, for the purpose of being 
' posted ?' Which question the complainer declined to 
answer for the reasons formerly explained and again re- 
peated. 

It was further stated, that when the Judge stated his 
intention to commit the suspender for contempt of 
Court, an offer was made on the part of the prisoner to 
plead guilty, but the Court declined to receive the plea, 
and sentenced the suspender to thirty days' imprison- 
ment. He was liberated on the 25th, under an interim 
warrant of liberation granted on the present bill. 

The suspender pleaded that, (1.) The proceedings were 
irregular, in consequence of the departure by the pre- 
siding Justice from the recognised form and substance 
of oath usually administered in the Courts of Scotland. 
(2.) The qualified oath above mentioned having been ac- 
cepted by the Court, after the explanations given, the 
complainer could not be held as guilty of a contempt, 
by declining to answer the question referred to. (3.) The 
suspender was illegally committed to prison for con- 
tempt, in respect that, in his testimony, he complied 
with all that he undertook in the oath taken by him, 
and that he was not required to take any other or fur- 
ther oath. (4.) It was irregular and incompetent for the 
Justice to issue the sentence and warrant complained of, 
in the face of the offered plea of guilty by the accused 
party, which plea would have rendered any procedure 



AND CIRCUIT COURTS OP JUSTICIARY. 277 

against the complainer as a witness unnecessary. (5.) The *Jo. s*. 
information possessed by the suspender in regard to the Hn *. Dou- 
subject of inquiry before the Justice having been ob- Kidston. 
tained by him as a confession from a penitent to a High court, 
clergyman, and having been received on the footing 1863. " 
that it should not be disclosed by him, he was not Suspension, 
bound to answer the question put to him. 

Clark and Shand, for the suspender, argued — The cir- 
cumstances under which he had refused to answer were 
these : A person had waited on him as his spiritual ad- 
viser, and admitted the abstraction of the money ; he 
had advised him to restore it, and having got the 
money, had enclosed it in the envelope to Ferguson. 
It was clear that, in these circumstances, an answer to 
the question put by the Fiscal would have disclosed, or 
had a tendency to disclose, who the person was who had 
confessed to the abstraction of the money, and so to dis- 
close that confession. It was not averred that this com- 
munication had been made by a penitent in the Confes- 
sional, nor was any argument rested on the fact that 
the suspender was a Roman Catholic priest. It was not 
wished to represent that the suspender was in any other 
position than that simply of a clergyman, who was 
asked to disclose private communications made to him 
by one who came to ask his advice as a clergyman. 

It was not necessary to consider the general question, 
whether such communications were privileged. The fact 
that the suspender had publicly stated his objection to 
disclose the whole truth, and that the Justice had 
agreed that he should take an oath which did not oblige 
him to tell the whole truth, made the case a special 
one. The Judge was wrong in administering an oath 
which was not the usual one — Queen v. Hay % 1860, 
Foster and Finlason, ii. 4. The question, however, 
was, whether, in refusing to answer the question, the 
suspender was guilty of contempt of court ? Now he 
was not, because the Judge had plainly sanctioned his 
refusal to tell the whole truth. It was true that the 



278 CASES BEFORE THE HIGH COURT 

j£i*a 9 h- •*^ sca * ^ no * ^ directly what the person who con- 
no *. Dou- suited the suspender had said ; but the question put 
Kidston, amounted to that in substance, and its object was to 
High Court discover what had been said. 

ma. ' As to the larger question, whether, apart from any 
Suspension peculiarity as to the oath, communications between peni- 
tents and their spiritual advisers were privileged it 
was maintained that they were so. There was not 
much authority on the point but Hume, vol. ii. p. 335, 
and Dickson on Evidence p. 939 were favourable to that 
view, and also Alisons Practice, 471, 586. In the cases 
of Janet Hope or Walker, High Court, July 29th 1845, 
Broun, vol. ii. p. 465, and David Moss, Inverness, Sep- 
tember 21 and 22, 1859, Irvine, vol. iii. p. 434, 
such communications had been protected. It was ad- 
mitted, however, that these were cases in which a pri- 
soner had been induced to make disclosures, not cases 
of voluntary confession ; but the principle there adop- 
ted applied to this case. The principle was, that it 
was for the general interests of society, and conducive 
to the prevention of crime and the restitution of pro- 
perty, that a person accused, or a criminal, should be 
allowed to unburden his mind in safety to his clergy- 
man ; just as it was held conducive to the general wel- 
fare to protect communications by criminals to their 
agents. 

It was true that Taylors Evidence 755-7, stated that 
such communications were not privileged by the law of 
England, but the authorities he quoted did not bear 
out his doctrine. The question was not raised purely in 
any of them ; Rex v. Gilharn, 1828, 1 Moody Cr. Cas. 
186 ; Butler v. Moore, 1802, MacNally's Rules of Evi- 
dence, 254 ; Commonivealth v. Drake, 1784, 15, Massa- 
chusetts Rep. 161. In Broad v. Pitt, 1828, 3 Car. and 
Payne, 518, Chief- Justice Best said, that he would not 
compel a clergyman to disclose such communications. 
Baron Alderson's opinion in the Queen v. Griffin, 1853, 
6 Cox Crim. Cas., 219, was to the same effect. The 



AND CIRCUIT COURTS OP JUSTICIARY. 279 

case of the Queen v. Hay was not adverse. It was No. 5*. 
maintained that it was proper and expedient to protect Un t. Dou- 
such communications in criminal cases. In any view, lukton. 
in the circumstances, the sentence was oppressive, and HighComi. 
the suspender had been punished sufficiently — Bonnar i863. ' 



v. Simpson* High Court, February 15th, 1836, Swinton, Suspension. 
vol. ii. p. 39. 

The Solicitor-General and Lee for the respondents, 
the Procurator-Fiscal and Justice of the peace, answered, 
the obligation of a witness to disclose the whole truth 
depended in no degree on his oath, and he was guilty of 
contempt of court if he refused to answer, though he 
took no oath. The terms of the oath did not limit the 
complainer's obligation ; they only reserved to the sus- 
pender his legal rights, such as they were. Communi- 
cations by an accused to a clergyman were not protec- 
ted by the law ; and to hold that a clergyman was not 
bound to disclose them would give security and encour- 
agement to crime. By the question put, the suspender 
was not asked to disclose what had been communicated 
to him, but merely to state what had occurred, — to tell 
that which was of the res gestce in reference to the case 
under trial. It was necessary to compel disclosure in 
such cases, not only in order to insure the punishment 
of the guilty, but to prevent the imputation of crime to 
the innocent. 

At advising, the judgment of the Court was delivered 
by 

The Lord Justice-General, who said, This case 
comes before us in the form of a bill of suspension and 
liberation, presented by the Rev. Patrick M'Laughlin, 
Roman Catholic clergyman, at Eastmuir of Shettleston, 
near Glasgow. He complains of a judgment and war- 
rant whereby he was committed to the jail of Glasgow, 
therein to be detained for thirty days. That bill of sus- 
pension and liberation was in the first instance laid be- 
fore Lord Neaves ; and his Lordship, in the exercise of 
the power vested in a single Judge, made an order for 



280 CASES BEFORE THE HIGH COURT 

No. 59. the interim liberation of the complainer, upon security 

iin «. Doq- being found that he would return to prison in the event 

Kids!!! 1 * of the bill of suspension being ultimately refused, when 

nigh Court, fully considered by the Court. The case was afterwards 

J ?86S. 7 * argued by counsel before the whole Court, and is now 

Suspension, ripe for judgment. 

It is not contended that there is on the face of the 
warrant any informality or irregularity. The contention 
is, that no warrant of imprisonment should have been 
granted in the circumstances. 

The circumstances were these : — In the course of the 
trial of one Terence M'Ghee on a charge of theft, the 
complainer was examined as a witness for the prosecu- 
tion, and being asked to whom he delivered a certain 
letter to be posted, he declined to answer the question, 
and, at an adjourned diet, having been asked whether 
he delivered the letter to the accused, he refused to 
answer. He was then informed that he was bound to 
answer, and the consequences of refusal were explained 
to him ; but he persisted in refusing to answer, where- 
upon he was held to be guilty of contempt of court, and 
was committed to prison, and to be detained there for 
thirty days. There can be no doubt thai under ordinary 
circumstances, a witness refusing to answer such a ques- 
tion would be guilty of contempt of court, and be liable 
to imprisonment. But the complainer says that he had 
valid reasons for refusing to answer the question. The 
reasons are stated articulately in the bill of suspension, 
and were more fully explained and supported by argu- 
ment from the Bar. I shall now advert to these reasons, 
and state my views in regard to them. I shall first 
consider the reason embodied in the fifth plea for the 
complainer. The fifth plea is as follows : — € The infor- 
1 mation possessed by the complainer in regard to the 
€ subject of inquiry before the Justice having been ob- 
' tained by him as a confession from a penitent to a 
* clergyman, and having been received on the footing 
' that it should not be disclosed by the complainer, he 



AND CIRCUIT COURTS OF JUSTICIARY. 281 

' was Dot bound to answer the question put to him.' In £%£ m hm 
order to understand the application of that plea to the Hn ». Don- 

crliui And 

facts of the present case, it is proper that I should men- Kidston. 
tion the facts, and I shall take the narrative of them High Court 
from the complainer's statement in his bill of suspen- ms. ' 
sion. In the 6th article, the account he gives of the suspension, 
matter is this : — ' In the course of the trial it appeared 
that Terence Ferguson referred to, who was unable 
himself to write, had got a young girl, daughter of the 
accused, to write a letter to his (Ferguson's) father, 
in which was enclosed two half-sovereigns, and that the 
letter having been addressed, it had been put into the 
hands of the accused to be posted at Tollcross ; but upon 
reaching its destination the money was found to have 
been abstracted/and that this had led to a communica- 
tion with the post-office officials at Tollcross and Glas- 
gow, but that in the meantime Terence Ferguson had 
received an envelope addressed to him, enclosing a bank 
note for £1, and a paper containing in writing the fol- 
lowing words, viz : — ' This is the pound-note which 
you sent to your father, and which had gone amiss- 
fog,' or words to that effect.' The 7th article goes 
on to state : — c These words above quoted were written 
by the complainer, and this fact had come to the 
knowledge of the prosecutor by the following means : 
— A letter, dated 29th November 1862, was addressed 
to the complainer by Mr. A. M'Call, superintendent of 
police at Glasgow, professing to make inquiry as to the 
character of the parties, M'Ghee and Ferguson, to 
which the complainer sent an answer, giving the infor- 
mation asked, and by comparison of the writing, it 
was seen that the complainer had been the person 
through whom the restitution of the missing money 
had been made, and a wrong done had been redressed. 
When called as a witness, the complainer, before any 
examination was commenced, explained that he had 
conscientious objections to take the oath in the form 
usually administered, and as proposed to be adminis- 



282 CA8ES BEFORE THE HIGH COURT 

M^Lugh- ' * ere( l *° h™*- He fully and anxiously explained to 
iin * Dou- < j\j r# Kidston, the presiding Justice, and in open Court, 

Kidston. ' the grounds upon which he rested his objections/ and 
High Court then he was put upon oath in certain terms. Statement 

Jan. 17. . 

1863. 10 proceeds : — 'The examination of the complainer as 
Suspension. ' a witness was proceeded with, and the complainer, in 
1 answer to the prosecutor, stated, that he had addressed 
' the envelope containing the one-pound note, and had 
* written the accompanying explanation, and that he 
' had enclosed the note and sealed the envelope. Being 
' then interrogated, ' To whom did you deliver it ?' 
' The oomplainer declined to answer that question. It 
€ would have involved a violation of the coraplainer's 
' duty as a clergyman, and he must have revealed a con- 
' fidential communication from a penitent had he an- 
' swered the question put to him. He would have vio- 
' lated his conscience had he done so. The oath he had 
' taken did not require him to answer that question, 
' and he was required to take no other oath. He ad- 
' hered to his declinature to answer that question. 
' After considerable discussion, the Court adjourned 
€ till Thursday the 11th December, in order that the 
' complainer might reconsider the position in which he 
' was placed/ At the adjourned diet the question was 
put to him, ' Whether he had given the letter contain- 
1 ing the one-pound note to the accused party, Terence 
' M'Ghee, for the purpose of being posted ?' and that 
question he declined to answer. 

When the case was argued at the bar, the counsel for 
the complainer, in answer to a question from the Court, 
stated that the communication made to him by the pe- 
nitent was not made in the Confessional, properly so 
called, and that, as*regards privilege or confidentiality, 
it was in no different position from a communication 
made to a clergyman, of any other persuasion, by a peni- 
tent member of his flock, who desired to relieve his 
conscience, and to receive spiritual advice and consola- 
tion. Having placed the question on that broad ground 



AND CIRCUIT COURTS OF JUSTICIARY. 283 

the argument for the complainer was directed to show ^^f' hm 
that, according to the law of Scotland, a clergyman is &» *. Dou- 
not bound to disclose communications so made to him. kidston. 



It was not, indeed, said that the circumstances under High Court, 
which the complainer received the communication of i863. * 
the penitent were exactly those contemplated in the Suspension. 
leading authorities referred to, but it was very forcibly 
argued that the principle extended to them. It appears 
to me to be unnecessary to inquire into, or to pronounce 
any opinion upon either the existence or the scope of 
the principle contended for, as to penitential confessions 
of criminals to clergyman, because I am very decidedly 
of opinion that there is neither authority nor principle 
for holding, that the question which the complainer re- 
fused to answer comes within the operation, of even 
the widest range, of any rule of confidentiality recog- 
nised in our law, or suggested anywhere by our law 
writers. Assuming though not asserting, that the law 
may regard as confidential, and therefore not to be dis- 
closed, a confession made by a criminal to his spiritual 
pastor, to ease his conscience and obtain consolation 
and advice, and even that it protects from disclosure 
the whole of what I may call the spiritual intercom- 
muning between them, — no one has ever said that it goes 
further, and extends, not to anything said by the peni- 
tent to the priest, or by the priest to the penitent, in 
the course of that spiritual intercommuning, but extends 
to every act afterwards done by either of them, if it can 
be regarded as a consequence of the confession made. 
In such acts, the priest is not engaged in the exercise 
of his spiritual functions ; the penitent is not engaged 
in confessing to his spiritual adviser. For instance, in 
the present case, it was not in the exercise of any spirit- 
ual functions that the complainer wrote the letter, or 
that he give it to A, B, or C, to be posted. These 
were rather the functions of an agent than of a priest. 
I have no doubt that in taking them upon himself the 
complainer was actuated by the best motives — kindness 



284 CASES BEFORE THE HIGH COURT 

M^Lautfi- to *^ e Patent* justice to the party who had been in- 

Un iMand J ure( *> ^ ut y *° ^e community. The advice which he 
Ki<foton- gave, and the trouble he took to put it in train to be 

H|gh court, carried into execution, are deserving of all commenda- 
1863. ' tion. But the fact to which the question referred was 

Suspensioo. altogether ultra of the penitential confession and the 
spiritual advice and consolation, which cannot, in any 
view of them, go beyond what the penitent said to the 
priest, and what the priest said to the penitent. It 
may be that acts done either by the priest or by the 
penitent himself, within the knowledge of the priest, 
after confession and consequent on it, are of a nature 
calculated to connect the penitent with the crime. But 
I know of no authority or principle for holding that 
the}' are protected as confidential by our law. Let it 
be supposed that in the present case the priest had given 
the sealed letter to his servant, with instructions to de- 
liver it to the accused, could that chain of evidence be 
excluded or be broken on the plea of confidentiality ? 
Plainly not. If the principle contended for does exist, 
and could be extended to such a case as this, it would 
be next to impossible to define its limit, and the course 
of justice might be extensively and prejudicially inter- 
rupted. I therefore hold that the question which the 
complainer refused to answer was one which he was not 
entitled to refuse to answer, on the ground set out in 
the fifth plea in law. 

Another reason assigned by the complainer for not 
answering the question, is rested on the manner in 
which he was sworn. That ground of suspension is em- 
bodied in the first three pleas in law appended to the 
bill of suspension. The facts connected with this part 
of the case are thus stated by the complainer in the 8th 
and 9th articles of the suspension : — ' When called as a 
* witness, the complainer, before any examination was 
' commenced, explained that he had conscientious objec- 
' tions to take the oath in the form usually administered, 
' and as proposed to be administered to him. He fully 



AND CIRCUIT C0UHT8 OF JUSTICIARY. 285 

and anxiously explained to Mr. Kidston, the presiding H^uugh- 
Justice, and in open Court, the grounds upon which ,in j£ JjJ" 
he rested his objections, being in substance, that ac- ^ idaton ' 
cording to his conscience, if he were, in the matter be- Hiph Court. 
fore the Court, to take an oath which would bind him ism. 
to answer every question which the prosecutor might SMpenwon. 
choose to put to him, this might, and probably would, 
involve a violation of his duties as a clergyman and a 
priest called upon to receive confidential communica- 
tions from a penitent. The complainer at same time 
stated his willingness to take any oath that would not 
necessarily place him in such a position, or lead to 
violation of what he believed, and now believes in 
his conscience, to be his duty, and stated as follows : — 
I am willing to swear that anything I say shall be 
true to the best of my knowledge.' To this the prose- 
cutor strenuously objected, but after a conversation be- 
tween the Assessor, Mr. George Crawford, and Mr. 
Kidston, in the course of which the Assessor said, re- 
ferring to the complainer's suggestion as to the oath he 
was willing to take, ' he only excludes the words 
'whole truth" — there may be something within his 
knowledge which he will not divulge/ the presiding 
Justice agreed to administer the oath which the com- 
plainer could conscientiously take. Accordingly an 
oath in the following terms was tendered and taken, 
viz. — ' I swear by God I shall tell the truth, and 
nothing but the truth, and whatever I shall say in 
this case shall be the truth. 1 No further or other oath 
was therefore either tendered or taken by the com- 
plainer. The oath he had taken did not require him 
to answer that question, and he was required to take 
no other oath.' It appears to me that in this part of 
the proceedings there was a mistake on the part of 
the Justice of Peace. He appears to have acted under 
misapprehension, and to have departed from the strictly 
regular course in order to accommodate matters to the 
wishes and scruples of the complainer. The counsel for 



288 CA8ES BEFORE THE HIGH COURT 



M-Laugh- *° disclose, the taking of the oath in the usual terms 
fin ». Dou- w m no t, in the slightest degree, deprive him of the 
Kidston. right to refuse to disclose it. To hold otherwise would 
II ^n C i7 rt ' ^ e *° m isconstrue the oath. The complainer, therefore, 
isgs. was not entitled to refuse to take the oath in its ordin- 
Sospension. ai y form, and the refusing to do so was itself an offence 
for which he might have been punished with immediate 
imprisonment. I think that in this case it would have 
been a more regular course to have explained to the 
complainer the obligation he was under to take the 
oath — the insufficiency and inadmissibility of his objec- 
tion to do so, and if he had persisted in refusing to 
take the oath, to have punished him for such refusal 
But the Justice of the Peace, apparently desirous to ob- 
viate the complainer's scruples and objections, however 
mistaken and unreasonable they might be, agreed to 
omit from the oath the words ' whole truth.' This 
was unfortunate, because it appears to have led the 
complainer to take up the notion that he was now un- 
der no obligation to tell the whole truth, and might 
withhold any facts which, in his judgment, though not 
in the judgment of the Court, it would be improper for 
him to disclose. There again the complainer mistook 
his true position. The omission of the words from the 
oath did not relieve the witness from his legal obliga- 
tion to tell 'the whole truth/ by which I mean, to 
answer every question excepting on such matters as the 
law permits a witness to refuse to disclose. The Court 
did not, and could not in any form, and certainly not 
in the form of omitting these words from the oath, 
make a transaction with a witness, whereby he should 
be at liberty to tell as much or as little as he might 
think proper — to refuse to answer any question which, 
in his opinion, might bear against the accused, and to 
give only such answers as he thought might tend the 
other way. The counsel for the complainer did not 
contend for any such extravagant proposition. He did 
not contend that he was relieved from answering any 



AND CIRCUIT COURTS OP JUSTICIARY. 280 

question at his pleasure, but only that he was relieved J!?- 69 - 
from answering certain questions, namely, questions ifc «. Dou- 
bearing directly or indirectly on what he regarded as a Kidston. 
confidential communication made to him by a penitent. High Court. 
But if that be so, the necessary inference is, that the wW 
right to decline answering depended, not upon the suspension, 
words of the oath, but on the nature of the question, 
and the validity of the objection to answering it ; and, 
consequently, if there was no valid objection to the 
nature of the question — if there was no legal right or 
duty to withhold the information asked, it was incum- 
bent on the witness to have answered the question, not- 
withstanding the omission from the oath of the words 
referred to. Further still, the very terms of the oath, 
even as mutilated, imported an obligation to tell the 
whole truth just as much as if it had not been mutilated. 
The complainer swore that he would tell the truth, 
which meant that he would give a true answer to such 
questions as might be competently put, and which he 
had no valid ground in law for refusing to answer. For 
these reasons, I am of opinion that the pleas founded 
upon the terms in which the oath was administered are 
not valid to the effect of relieving the complainer from 
the charge of having been guilty of a contempt of court, 
for which he was liable to imprisonment. At the same 
time I think it not unlikely, that the departure from 
the ordinary course of proceeding in reference to the 
oath may, to some extent, have misled the complainer 
into an erroneous notion as to the nature of his position. 
I cannot regard that as a justification of his refusal to 
answer, although I think it might fairly be regarded as 
a circumstance in mitigation. 

The only other ground of suspension is that embodied 
in the fourth plea : — € It was irregular and incompetent 
' for the Justice to issue the sentence and warrant com- 
* plained of, in the face of the offered plea of guilty by 
1 the accused party, which would have rendered any 
r procedure against the complainer as a witness unne- 

VOL. IV. T 



290 CASES BEFORE THE HIGH COURT 

No. 59. < cessary/ The facts on which that plea is rested are 

M'Laugh- _ 

Hn v. Dou- thus stated by the complainer in the 13th article : — ' It 
Kidston. ' having been then stated by the presiding Justice that 
High Court ' the complainer would be committed to prison for a 
J T8«!" ' contempt of court, the agent for the accused party, 
Suspension. € M'Ghee, with the sanction and authority of the ac- 
' cused, intimated that he was ready to plead guilty to 
' the charge against him, in order to obviate the neces- 
' sity for the complainer's imprisonment or examina- 
' tion ; but the Court refused to accept of such a plea/ 
And in the 15th article — 'The sentence and warrant 
' are silent as to the plea of guilty tendered by the ac- 
' cused, which plea would in any view have rendered 
' entirely unnecessary any proceedings against the com- 
' plainer/ The counsel for the complainer stated that 
he did not abandon that ground of suspension, but he 
offered no argument in support of it. We must, how- 
ever, dispose of it, and we can only do so by repelling 
it. I can understand that a generous impulse might 
prompt Terence M'Ghee to offer himself as a sacrifice to 
save his respected pastor from imprisonment, if it were 
practicable to save him. I do not understand the con- 
fusion of ideas which led him and his agent to imagine, 
that by going through the form of pleading guilty to 
a theft of which he was protesting his innocence, he 
could relieve another person of the consequences of a 
contempt of court, which that person had committed. 
I give my learned friends credit for the ingenuity which 
must have been exerted in embodying this incident into 
a presentable plea ; and I am not surprised that their 
ingenuity was so much exhausted by the effort of con- 
structing the plea, that it failed to supply them with 
any argument in support of it. 

The result arrived at on the whole matter is, that 
the complainer was guilty of contempt of court, merit- 
ing imprisonment; that the plea of confidentiality, 
whether it has or has not any positive place in our 
law, in reference to communications made in cer- 



AND CIRCUIT COURTS OF JUSTICIARY. 29 1 

tain circumstances by a penitent to his spiritual pastor u?un|h- 
certainly has no place in reference to such a ques- 11 ^^- 
tion as the complainer refused to answer, and that Kidaton. 
the plea rested on the terms in which the oath was HfehOourt. 
administered is not well founded as a justification of 1863.' 
the complainer's conduct, but that, in the position in Suspension, 
which he was placed by the departure from the ordinary 
and regular course of procedure in reference to admin- 
istering the oath, may be found grounds for mitigating 
the sentence. But, in expressing this opinion, I do not 
mean to suggest that imprisonment for thirty days is a 
sentence too severe for contempt of court. Many cases 
may be figured in which it would be much too lenient 
a sentence. Contempt of court may, as in the case of 
other offences, be attended by circumstances of aggra- 
vation or of palliation, and the measure of the sentence 
must depend on the nature and circumstances of the 
case. In the present case, the circumstance I have al- 
ready alluded to is one which may fairly be taken into 
account on the side of mitigation. The conduct of the 
complainer in causing restitution to be made to the in- 
jured party is also a favourable circumstance in his 
case, and we cannot altogether throw out of view the 
testimony borne to his character and usefulness by the 
Procurator-fiscal in the course of the trial. Looking to 
all these circumstances, I think we may entertain the 
belief that, in refusing to answer the question, he was 
not actuated by a desire to screen guilt and obstruct the 
due course of justice ; and we may also entertain the 
hope, that the duty of a witness having now been ex- 
plained to him, he will not forget it, or again so far 
mistake his position ; and that the complainer, having 
already been in prison for a period of about fourteen 
dayB, the law will be vindicated and justice done by 
dispensing with any further execution of the sentence. 

The Court pronounced the following interlocutor : — 
"17th January 1863. — The Lord Justice-General, 



292 CASES BEFORE THE HIGH COURT 

M^uugh- € k° r( * Justice-Clerk, and Lords Commissioners of Justi- 
Hn iL D °d" € c ^ ar y ^ ay i n g resumed consideration of this case — inre- 
Kidaton. ' spect that the complainer was guilty of contempt of 
HighCourt. s court, and that he was lawfully adjudged to be com- 
i8*b-3. * € mitted to the prison of Glasgow for such contempt- 
Suspension. € Therefore, and to that extent and effect, refuse the 
' bill, but find that, in the circumstances now stated, 
' and the complainer having already undergone impri- 
' sonment for thirteeen days, further execution of the 
€ sentence should be dispensed with : Therefore, to that 
' extent and effect pass the bill, suspend the further ex- 
' ecution of the sentence, and discharge the suspender's 
' obligation under his bond of caution to return to 
' prison : Find the complainer liable in expenses, which 
1 modify to ten guineas, and decern.' 

John Roes, S.S.C., Murray and Bkith, W.S. — Agents. 



mi. Preient « 

The Lord Justice-Clerk, 

Lords Cowan and Deas. 

Her Majesty's Advocate— Sol- Gen. Young—Qifford A.D. 

AOArNST 

Charles Stewart Davidson and Stephen Francis — W. A. Brown. 

Base Coin — Statute 24th and 25th Vict. c. 99 — Procedure- 
Indictment — Previous Conviction — Foreign. — An indictment 
charging offences against the Coinage Act, 24th and 25th 
Vict. c. 99, ought to be framed, and the trial conducted according 
to the forms and procedure in use in Scotland ; and the provisions 
in the 37th section as to the mode of libelling previous convictions, 
and as to the mode of trial in the case of previous convictions, do 
not apply to trials in Scotland. (2.) Previous convictions are 
therefore to be set forth in the indictment in the usual manner, the 
provision that the substance and effect of such convictions should 



AND CIRCUIT COURTS OP JUSTICIARY. 293 

be set forth, not referring to procedure in Scotland. "(3.) A panel No 60 
is relevantly charged with the high crime and offence in the 12th C. S. Da- 
section (uttering, or possessing with the intention to utter counter- g 1 Francis 
feit coin, after a previous conviction), although the previous con- - .^^ 
fiction libelled be a conviction by the English Court. Feb. 2. 

1863. 



Charles Stewart Davidson and Stephen Francis Bd8e Coin - 
were indicted and accused : — 

That albeit, by an Act passed in the twenty-fourth and twenty- 
fifth years of the reign of Her Majesty Queen Victoria, chapter ninety- 
nine, entituled, * An Act to Consolidate and Amend the Statute Law 
' of the United Kingdom, against Offences relating to the Coin/ it is 
enacted by section ninth of the said Act, that * Whosoever shall 
tender, utter, or put off, any false or counterfeit coin, resembling, or 
apparently intended to resemble or pass for, any of the Queen's 
current gold or silver coin, knowing the same to be false or coun- 
terfeit, shall in England and Ireland be guilty of a misdemeanour, 
and in Scotland of a crime and offence ; and being convicted thereof, 
shall be liable, at the discretion of the Court, to be imprisoned for 
any terra not exceeding one year, with or without hard labour, and 
with or without solitary confinement : ' And it is enacted by section 
tenth of the said Act, that ( Whosoever shall tender, utter, or put off 
any false or counterfeit coin, resembling, or apparently intended to 
resemble or pass for, any of the Queen's current gold or silver coin, 
knowing the same to be false or counterfeit, and shall, at the time 
of such tendering, uttering, or putting off, have in his custody or 
possession, besides the false or counterfeit coin so tendered, uttered, 
or put off, any other piece of false or counterfeit coin, resembling, or 
apparently intended to resemble or pass for, any of the Queen's cur- 
rent gold or silver coin, or shall, either on the day of such tender- 
ing, uttering, or putting off, or within the space of ten days then 
next ensuing, tender, utter, or put off, any false or counterfeit coin, 
resembling, or apparently intended to resemble or pass for, any of 
the Queen's current gold or silver coin, knowing the same to be 
false or counterfeit, shall in England and Ireland be guilty of a mis- 
demeanour, and in Scotland of a crime and offence ; and being con- 
victed thereof, shall be liable, at the discretion of Court, to be im- 
prisoned for any term not exceeding two years, with or without 
hard labour, and with or without solitary confinement:' And it is 
enacted by section eleventh of the said Act, that * Whosoever shall 
have in his custody or possession, three or more pieces of false or 
counterfeit coin, resembling, or apparently intended to resemble or 
pass for, any of the Queen's current gold or silver coin, knowing 
the same to be false or counterfeit, and with intent to utter or put 



294 CASES BEFORE THE HIGH COURT 

No. 60. * off the same, or any of them, shall in England and Ireland be guilty 
vidaonand ' °* & m ^ emeanour > aD< i m Scotland of a crime and offence; and 
S. Francis. * being convicted thereof, shall be liable at the discretion of the Court, 



High Court. ' to be kept in penal servitude for the term of three years, or to be 
186S* * imprisoned for any term not exceeding two years, with or without 



BaaeCoin. 



' hard labour, and with or without solitary confinement : ' And it if 
enacted by section twelfth of the said Act, that * Whosoever having 
4 been convicted either before or after the passing of this Act of any 
1 such misdemeanour or crime and offence as in any of the last three 
1 preceding sections mentioned, or of any felony, or high crime and 
1 offence against this or any former Act relating to the coin, shall 
' afterwards commit any of the misdemeanours, or crimes and offences, 
4 in any of the said sections mentioned, shall in England and Ireland 
1 be guilty of felony, and in Scotland of a high crime and offence; 
* and being convicted thereof, shall be liable, at the discretion of the 
4 Court, to be kept in penal servitude for life, or for any term not less 
( than three years, or to be imprisoned for any term not exceeding 
4 two years, with or without hard labour, and with or without solitary 
1 confinement : ' Yet true it is and of verity, that you the said 
Charles Stewart Davidson and Stephen Francis are, both and each or 
one or other of you, guilty of the statutory crimes and offences set 
forth in the above-recited ninth, tenth, and eleventh sections of the said 
statute, or one or more of them, actors or actor, or art and part : And 
you the said Stephen Francis are further guilty of the high crime and 
offence set forth in the above-recited twelfth section of the statute, 
actor, or art and part. 

One of the previous convictions in respect of which 
the ' high crime and offence ' set forth in the 12th sec- 
tion was charged against Francis, was stated to be a 
conviction obtained 



before the General Sessions of the Justices of the Peace held at the 
Old Bailey, in or near the City of London, on the 4th day of July 
1859, of the crimes and offences respectively first and second set forth 
in the seventh section of the Act passed in the second year of the 
reign of His late Majesty King William the Fourth, chapter thirty- 
four, entituled, * An Act for Consolidating and Amending the Lawi 
* against Offences relating to the Coin/ being the same, or such crimes 
and offences as are respectively mentioned in the ninth and tenth 
sections of the said statute of the twenty-fourth and twenty-fifth yean 
of the reign of Queen Victoria, chapter ninety-nine, and that on an 
Indictment charging you with the commission of the said crimes and 
offences first and second set forth in the said seventh section of the 



AND CIRCUIT COURTS OF JUSTICIARY. 295 

said Act of the second year of the reign of His late Majesty King No. 60. 
WilKam the Fourth, chapter thirty-four. 1 ri*on wd 

S. Francis. 
High Court. 

1 The 34th section of the Act 24th and 25th Vict, c 99, provides, F ^^' 
inter alia, that, ' All high crimes and offences, and crimes and offences g — Coixi~ 
4 against this Act, which may be committed in Scotland, shall be pro- 
1 ceeded against, and tried according to the rules and procedure of 
4 the criminal law of Scotland.' 

The 37th section of the Act provides : — ( Where any person shall 
1 have been convicted of any offence against this Act, or any former 
1 Act relating to the coin, and shall afterwards be indicted for any 
4 offence against this Act committed subsequent to such conviction, it 
1 shall be sufficient in any such indictment, after charging such subse- 
' quent offence, to state the substance and effect only (omitting the 

* formal part) of the indictment and conviction for the previous offence ; 
4 and a certificate containing the substance and effect only (omitting 

* the formal part) of the indictment and conviction for the previous 
1 offence, purporting to be signed by the Clerk of Court or other 
1 officer, having, or purporting to have, the custody of the records of 
4 the Court, where the offender was first convicted, or by the deputy 

* of such clerk or officer, shall, upon proof of the identity of the per- 
4 son of the offender, be sufficient evidence of the previous conviction 
( without proof of the signature, or official character, or authority of 
' the person appearing to have signed the same, or of his custody, or 
4 right to the custody, of the records of the Court ; and the proceed- 
4 ings upon any indictment for committing any offence after a previous 
4 conviction or convictions shall be as follows — that is to say, the 
4 offender shall, in the first instance, be arraigned upon so much only 
4 of the indictment as charges the subsequent offence ; and if he plead 
44 Not guilty," or if the Court order a plea of not guilty to be entered 
1 on his behalf, the jury Bhall be charged, in the first instance, to in- 
4 quire concerning such subsequent offence only; and if they find 
4 him guilty, or if, on arraignment, he plead guilty, he shall then, and 
1 not before, be asked whether he had been previously convicted as 
1 alleged in the indictment, and if he answer that he had been so pre- 
4 viously convicted, the Court shall proceed to sentence him accord- 
4 ingly, but if he deny that he had been so previously convicted, or 
4 stand mute of malice, or will not answer directly to such question, the 
4 jury shall then be charged to inquire concerning such previous con- 
4 viction or convictions, and in such case it shall not be necessary to 
4 swear the jury again, but the oath already taken by them shall, for 
4 all purposes, be deemed to extend to such last-mentioned inquiry. 1 
Then follows a proviso as to the evidence of the character of the 
panel. 



1863. 
Base Coin. 



296 CASES BEFORE THE HIGH COURT 

c N s d»- ^' ^' ^BOWN^for the panel Francis, objected that 
▼iion »nd ' the substance and effect' of the previous conviction 
* u „ ' were not set forth in the indictment. 

High Court 

eb. 2. The Solicitor-General and Gifford— for the prose- 
cution, answered that the 37th section did not apply to 
Scotland, except, perhaps, the provisions as to proving 
the previous conviction. At all events, the substance 
and effect of the previous conviction were sufficiently 
set forth. 

Lord CowAlN. — Section 34 declares that all offences 
committed in Scotland shall be proceeded with accord- 
ing to the criminal law of Scotland. I cannot doubt 
that this was done in order to preserve the existing 
modes of trial. The very next section, 35, (referring to 
accessories before and after the fact), is obviously in- 
applicable to Scotland, and section 36 (regarding offences 
on the high seas), contains the adoption by the Legisla- 
ture of proceedings already in use in Scotland. The 
mode of charging previous convictions in Scotland is 
part of the law of Scotland which is preserved by this 
Statute. As to the part of section 37 which relates to 
the form of trial ; here also, I have no doubt that the 
rules and procedure of the law of Scotland are preserved. 
The Solicitor-General says there may be some doubt 
as to the evidence of previous conviction, and on this I 
do not think it necessary to pronounce an opinion ; but 
if there is a difference between the evidence required in 
the two countries, a further question will arise, whether 
section 29 (defining what is to be sufficient evidence of 
the coin being counterfeit) is applicable to Scotland ? 
On the grounds stated, I am for sustaining the relevancy. 

Lord Deas. — It appears to me that the manner of 
libelling the previous conviction is one of the matters to 
be regulated, under section 34, ' by the rules and pro- 
' cedure of the criminal law of Scotland.' But if we 
were not also to hold that these words apply to and in- 
clude the rules of evidence, we should land ourselves in 
inextricable confusion. Rules of evidence belong to the 



AND CIRCUIT COURT OF JUSTICIARY. 297 

matter of remedy. It is true the contrary was held by ** ^ 
the First Division in Glyn and Co. v. Johnston and Co., **** »?* 
where the question was as to the competency of proof - '. h(u : 
by parole of the non-onerosity of a bill payable in Eng- ^eb. 2. 
land. But the case of Don v. Lippmann (2 S. and M'L. '. - 

682), and other subsequent cases in the House of Lords, 
have shown that to be an unsound decision. In my 
view, no part of section 37 is applicable to Scotland. A 
number of other sections of the Act are obviously in- 
applicable to Scotland, such as sections 29, 35, 41, and 
42, the first of which (section 29) introduces into Eng- 
land a part of what was previously law in Scotland. 
The phraseology of the Act varies, so as to be applica- 
ble to Scotland, whenever it is intended that the clause 
shall apply to Scotland. 

Lord Justice- Clerk. — I have no hesitation in saying 
that the charge is well libelled. Section 34 makes it 
clear that we are to proceed under our own rules, and 
more especially as to the mode of libelling. 

Lord Deas. — Before an interlocutor of relevancy is 
pronounced, I think we must consider the question 
which arises on the face of the libel as to founding upon 
the English conviction. The case of Dempster, High 
Court, January 13, 1862, Irvine, vol. iv. p. 143, was 
decided by a majority of a bench of three Judges, and 
only one of these Judges is now present. 

This is a stronger case for rejecting the conviction 
than Dempster's. You would make an English convic- 
tion of misdemeanour or felony, raise what in Scotland 
would only be a crime and offence, to a high crime and 
offence. I am not bound to know what is a misde- 
meanour or felony in the law of England, which at- 
taches a meaning to these words not technically given 
to them in Scotland. 

I think this question is intimately connected with 
that of the mode of pleading. If a prisoner is tried 
in England, the previous offence which brings the 
misdeameanour up to a felony, cannot be brought 



298 CASES BEFORE THE HIGH COURT 

c N s. uk- against him until he has first pleaded to the misde- 
s 1ew£ meanour ; and can we deal with an English conviction, 
High Court. an< * y e * deprive the prisoner of this benefit ? I would 

M6s X P re ^ er *° £* ve no decision without a full bench. 
BueCoin. Lord Cowxn. — This is a British Statute applicable to 
the United Kingdom, and its object was to have it fixed 
within the United Kingdom, that a person who commits 
an offence against the coin in any part of the United 
Kingdom, and repeats the offence, is not to be considered 
as if he had only committed the simple crime. Section 
12 contains no limitation as to parts of the United 
Kingdom. I see no disadvantage to the prisoner in 
the Scotch mode of pleading. In a common theft, the 
jury must first apply their minds to the substantive 
charge, without taking the convictions into account. 
Then as to the other question, I think the previous con- 
viction is well libelled, and that the libel is relevant. 

Lord Deas. — In Dempster $ case it was decided by a 
majority of one that an English conviction of theft 
might be libelled as an aggravation. This was then so 
decided in this High Court for the first time. When I 
was Crown counsel, English convictions were often sent 
up by the Procurators-fiscal, but never made use of. 
The opportunity of using them has been the same since 
the Union as it is now. It would have been desirable 
that such a point had been brought up for decision be- 
fore the whole Court. It is not a question on which I 
am disposed to give an opinion, without hearing it 
argued, but a single decision can hardly be held to fix 
the law. It is said, however, that even if that decision 
be wrong, still, in this case, the conviction is rightly 
libelled on. I think, on the contrary, that, under this 
Statute, it is more difficult to take the Crown view than 
in the case of a common previous conviction. Such a 
conviction is founded on only as an aggravation. Here 
the previous conviction serves to create a different and 
higher offence. The Statute refers separately to the 
two countries: its phraseology goes on this principle 



AND CIRCUIT COURTS OF JUSTICIARY. 299 

throughout. The words denoting a contravention in <f£5L 
England and Scotland are to be applied singuli singulis. rfion and 
If you read the Statute otherwise, all acts of contraven- m h ^^ 
tion in England might be tried in Scotland, and vice Feb. 2. 
versa. That, certainly, was not intended. It is a pre 



Bate Coin. 

vious conviction for misdemeanour in England that 
raises the crime to felony in England. The whole 
thing that constitutes the felony must have taken place 
in England; and in the same way, the whole thing 
which constitutes the high crime and offence must have 
taken place in Scotland. So I read the Statute. I am 
strengthened in this interpretation by the terms of sec- 
tion 34, which bears, ' All high crimes and offences, and 
' crimes and offences committed in Scotland, shall be 
' proceeded against and tried according to the rules and 
4 procedure of the criminal law of Scotland/ Was this 
high crime and offence committed in Scotland ? As a 
high crime and offence it was not. If your Lordships 
were right as to this matter, it would shake my view of 
the procedure under section 37 ; for if an English con- 
viction were to be received at all, it ought only to be 
received, as in England, after the rest of the case is 
proved. But our rules and forms of procedure do not 
permit of that being done, and so your Lordships have 
just decided. That tends I think, to favour the rejec- 
tion of it altogether. We know nothing of the regularity 
or irregularity of English convictions, or even of the ju- 
risdiction of the ' General Sessions of the Justices of the 
' Peace held at the Old Bailey,' before which this convic- 
tion is said to have been obtained. All this goes to con- 
firm my idea that the Statute was not intended to intro- 
duce any novelty. Indeed it is quite plain that if an Eng- 
lish conviction can be used for the purpose proposed under 
the Statute, it might have been equally used for that 
purpose under previous Statutes; for instance, under 
the Statute 2d Will. IV. c. 32, passed in 1832. That 
was a British Statute like the present ; but during the 
thirty years and upwards which have intervened, I am 



Base Coin, 



300 CASES BEFORE THE HIGH COURT 

c*SDi- not aware that the public prosecutor has ever once 

▼i*on and made the attempt till now. I dislike such innovations, 

Hi h Court an( * * ^° no * *^ n ^ *^ e Statute authorizes what is here 

Feb. 2. proposed to be done. Crimes and offences, and high 

crimes and offences, are, I think, exclusively to be dealt 

with in Scotland, and misdemeanours and felonies in 

England, and the clauses applicable to the one are not 

applicable to the other. 

Lord Justice -Clerk. — The question is a different one 
from what occurred in the case of Dempster. There 
the question did not arise, and could not have arisen, 
upon the relevancy, but on trial — on the admissibility 
of evidence. We were unfortunately obliged to decide 
it there and then, and were of opinion that the English 
conviction was an admissible aggravation. Lord Deas 
is mistaken in supposing that to be the first time that 
an English conviction was proposed to be made use of 
either in the High Court or a Circuit Court. Such 
a proposal was made and successfully, at the Perth Cir- 
cuit 1839, when the Court, after argument and delibe- 
ration, admitted it — (Bell's Notes to Hume.) So Demp- 
ster does not stand alone. On that case I see no reason 
to change my opinion ; but here the question is diffe- 
rent, 1st, as arising on relevancy ; 2dly, as depending 
on the construction of the clause of a Statute. Section 
12 is what we have specially to do with, but we must 
keep in mind the preceding sections. Section 9 enacts, 
that whoso utters base money, knowing it to be so, is 
liable to be imprisoned — the maximum period being one 
year. That offence may be tried by any court in the 
United Kingdom having jurisdiction to pronounce a 
sentence of imprisonment for such a period. The 
Statute calls this a misdemeanour when to be tried in 
England, and a crime and offence when in Scotland ; 
but the technical name does not, in the slightest degree, 
vary the nature of the contravention of the Statute or 
the amount of punishment. Contravention of section 
10 is in like manner called a misdemeanour in England, 



AND CIRCUIT COURTS OP JUSTICIARY. 301 

and a crime and offence in Scotland ; but it is quite <?$. ^. 
the same contravention, whether in England or in j^eon and 
Scotland, and so with section 11. With this light, Hi hConri 
we come to section 12, and put the question, what Feb. 2. 
is the difference between a misdemeanour and a crime 



Base Coin. 

and offence ? It is not a difference in the offence — it 
has nothing to do with the substance of that for which 
the pursuer is tried : it is only a technical name in 
pleading. By that section, if he again commits a further 
contravention (whether in England or Scotland), he 
incurs a higher liability. To construe this section in 
any other way, it must be supposed to contain two sepa- 
rate enactments, mixed up in so confused a manner as to 
be a very bad, and indeed quite an unprecedented 
style of legislation. 

The panels pleaded guilty, and Davidson was sentenced 
to eighteen months* imprisonment, and Francis to six 
years' penal servitude. 



Pre86nt ' Feb. 9, 10, 

The Lord Justice-Clerk, 11,186*. 

Lords Ardmillan and Neaves. 

Her Majesty's Advocate — 8ol-Oen. Young — Gifford A.D. 

AGAINST 

Alexander Milne. — Scott — Home — J. C. Thomson. 

Murder — Insanity — Special Defence — Medical Witness — De- 
claration — Evidence — Verdict — In a trial for murder, where 
the panel pleaded insanity at the time the act was committed, medi- 
cal witnesses were, on the motion of the counsel for the panel, 
allowed to remain in Court while the general evidence was being 
led, the counsel for the prosecution not objecting to the course. 

2. Circumstances in which it was held that a Lieutenant of Police 
and a Police Surgeon were justified in putting certain questions to 
a prisoner supposed to be insane, who had been brought to the 
office on a charge of murder, but who had not as yet emitted a 
judicial declaration : held also that the answers to these questions 
were admissible in evidence. 

3. Objection was taken to the admissibility of a declaration, on the 
ground that when it was emitted the panel was not in his sound 
and sober senses, and proof was offered in support of the objection, 



302 CASES BEFORE THE HIGH COURT 

No. 61. which was stated to be generally the same evidence as was to be 

A Amne. 6 ' add*" 5611 in support of a special defence of insanity. The declare- 

— tion admitted in the meantime, reserving to the Court, should they 

Feb. 9, 10, see cause, to direct the jury that it was not evidence against the 

11 > 1863 - panel in respect of his condition when it was emitted. 

Murder. 4. A prisoner's declaration is an element of evidence in the question 

of his sanity or insanity. 

5. Statement of the law as to insanity when pleaded as a defence to 
a criminal charge. 

6. A panel convicted of the crime of murder notwithstanding alleged 
insanity at the time when the act was committed. 

Alexander Milne was charged with the crime of 
murder — 

In so far as, on the 7th day of January 1863, or on one or other 
of the days of that month, or of December immediately preceding, 
in or near the shop or premises in or near Frederick Street, or 
South Frederick Street, Edinburgh, then occupied by you the said 
Alexander Milne, or by the firm of A. Milne & Company, of which 
you were a partner, you the said Alexander Milne did wickedly and 
feloniously attack and assault James Patterson, working jeweller, 
then or lately before residing with Ann Irvine or Wilson, in or 
near St. James' Square, Edinburgh, and did with a dagger, or 
poignard, or stilletto, or with some other instrument to the prosecutor 
unknown, stab or cut him in or near the left breast or other part of his 
person, whereby he was mortally wounded, and immediately or soon 
thereafter died, and was thus murdered by you the said Alexander Milne. 

A special defence was lodged for the panel, setting 
forth that at the time of the act charged he was insane 
and labouring under insane delusions. 

Thomson, for the panel, then represented that in the 
list of witnesses for the prisoner there were various 
medical men who were to be called to speak to the 
special plea which had been urged. They were not 
themselves cognisant of the facts upon which that plea 
was based, and as the opinion which they would be 
asked to give was mixed up with the facts of the case, 
and as it would be most satisfactory that they, as well 
as the Court and jury, should without doubt be pro- 
ceeding upon exactly the same facts, he moved the 
Court that the medical witnesses should be present 
while evidence as to the facts was being led. 






11,1863. 
Murder. 



AND CIRCUIT COURTS OP JUSTICIARY. 303 

The Solicitor-General, for the prosecution, con- A ExJ!der 
senting — Mane * 

The Court granted the motion. fK^ 

EVIDENCE FOB THE PROSECUTION. 

Robert Johnston, one of the Magistrates of Edinburgh. — The 
panel's declaration was emitted before me, in his sound and sober 
senses, I believe, quite voluntarily, and after warning. I warned 
him most carefully. 

Cross-examined for the Panel. — There were several questions put 
to panel by the Procurator- Fiscal, none by me, though I may have 
suggested something as to the form of questions. I do not recollect 
that I was then told he had made a statement in the police office. 
Before the examination of the panel the certificate of 8th January 
1863, by Dr. Littlejohn, was not shown to me. Dr. Littlejohn was 
in the room when I entered it, but left before me, and I understood it 
was with his full sanction the examination proceeded. Further than 
that I knew nothing of what Dr. Littlejohn had done, or what his 
opinion was. In the course of the examination I was informed by 
the Procurator-Fiscal that it was Dr. Littlejohn's desire that the ex- 
amination should be proceeded with* I had no impression about the 
case as being peculiar, except that panel had been a drunkard. This 
I knew only from rumour. 

John Otto Macquebn. — I am interim Procurator- Fiscal in absence 
of Mr. Dymock from bad health. I am an S.S.C. Panel's declara- 
tion was emitted in my presence, freely and voluntarily, and in his 
sound and sober senses, so far as appeared from anything that then 
took place. I believed him to be so ; he was quite calm and self- 
possessed, and appeared thoroughly to understand what he was say- 
ing and doing. He received the usual warning from the magistrate. 

Cross-examined for the Panel, — Previous to the declaration panel 
was brought to the Court-room by the city officers. I was not in the 
room with him before the declaration was taken. I was not aware 
that the day before he had made a long statement in the Police Office. 
[Shewn Dr. Littlejohn's certificate of 8th January.] I had not seen 
that certificate, but Dr. Littlejohn had seen panel at my request to 
ascertain whether there was anything to prevent his being examined 
on declaration. I had not seen panel when I made the request. I 
had understood panel was addicted to intemperance. It is usual to 
take such advice when there is any reason to suppose there may be 
cause why the panel should not be examined, as when he is addicted 
to intemperance. There was nothing eke that led me to get this cer- 
tificate. I put questions which were necessary to make his narrative 
complete and intelligible, but no other questions. All that he stated 
was taken down. 



304 CASES BEFORE THE HIGH COURT 

No. 61. To the Court — I saw Dr. Littlejohn in the interval between his 
A, JJ? nder v * 8 ** to tne P ane ^ an( * tne examination. He communicated his opinion 

— to me, and I acted on it. 

Feb. 9 10 George Graham, Working Jeweller. — I was in the employment of 
H> 1863 the deceased, in St. James' Square, for two years before his death. 
Murder. On Wednesday, 7th January, deceased sent me a message about 
9.30 a.m. to the panel's in Frederick Street. Deceased was in the 
habit of doing work for panel. Deceased asked me to go along to 
panel about an order got the day before, for that panel had been the 
worse of drink that morning, and if he had forgot he might not take 
it off his hand. It was an order for ' Albert mounts. 1 He said 
panel ( was complaining of fever the night before, and you may ask 
4 how he is. 1 I went to panel's, and found him in the front shop, and 
told him deceased had sent me to ask if he wanted the Albert mounts 
particularly to-day. Deceased told me to put the question in this 
way from delicacy. Panel said — ' yes, we must have them to-day, 
' but send Mr. Paterson along to me immediately/ I asked how he 
was, and he said he was a great deal better. I knew panel previously, 
and there was nothing unusual about him that morning ; he spoke 
quite calm, and was quite sober. Nobody else was in the shop. 
He came out of the back shop as I went in at the front door. He 
had a Highland cloak on, but no hat. I went back to deceased and 
gave him the message ; he said he would go along to panel's. He 
dressed himself, and went out about 10.30 or 10.45 a.m. As he 
went out he said — ( I won't be long.' I never saw him again. Panel 
used to come occasionally with orders to deceased ; also sometimes in 
the evening to visit him as a friend. They got more intimate towards 
the end of the two years I was with deceased. They were at the theatre 
together I believe the Monday before Christmas. Milne came to ask 
him to go about 7, but deceased said he could not go then, and 
I left them together in the shop, and I understood they went afterwards 
to the theatre. John Paterson was an apprentice of the deceased. 

Cross-examined for the Panel, — When I returned to deceased from 
panel's, I told deceased that panel was much better that morning. 
I was in deceased's shop when he came in that morning ; he was not 
dressed to go out ; had not his boots on. I never knew of deceased 
going out before I came to work in the morning. He lived in the 
house where he worked. Deceased and panel seemed always on 
friendly terms. I never saw panel drunk. 

Re-examined. — [Shewn two coats, vest, and trousers libelled.] 
Deceased was wearing these clothes when he went out that morning. 
[Shewn photograph likeness libelled.] That is a photograph of the 
deceased. 

John Paterson. — I was an apprentice of the deceased for 15 
months before his death. He worked for panel. I saw panel fre- 
quently in deceased's shop. On Wednesday morning, the 7th January, 



AND CIRCUIT C0URT8 OP JUSTICIARY. 305 

I was present when a message was sent by last witness to panel. No. 61. 
He was desired to ask if he should go on with the order, and if panel ^^j"" 1 *** 

was all well ; this was about 10.20 a.m. ; he came back about 10.45. — — 

I heard him deliver message to deceased, and deceased went out Feb. 9, 10, 
about 11. I never saw him again. I am no relation of deceased. I ll > 1863 « 
went to the shop that morning at 9 ; it was not open. I got the key Murder, 
out of deceased's room, the first door past the shop on the right hand. 
He lodged in Mrs. Wilson's house. I passed through Mrs. Wilson's 
room to deceased's. Mrs. Wilson slept in the first room. I went 
into deceased's bed-room, he was then not dressed. I am not sure 
whether he was in bed or dressing. I got the key and opened the 
shop. He came into the shop in less than half an hour ; he was in 
his ordinary working-dress. Panel and deceased seemed always 
friendly. I never saw panel tipsy. 

Ann Wilson. — Deceased lodged with me from September 
last. He was unmarried. On morning of 7th at breakfast deceased 
told me he had sent a young man to ask for panel, and he had re- 
ported that panel was quite composed, and asked why deceased did 
not come himself. Deceased said he was going to panel's. I said I 
thought he should not go near him as he was an excitable man ; that 
he would think nothing to say that deceased was too kind with his 
wife ; these foreigners were very deceitful and cunning. I thought by 
panel's appearance and speech that he was a foreigner. I had seen 
him twice while visiting the deceased. I knew nothing otherwise about 
him, except that deceased told me panel had been drinking since before 
Christmas, and had gastric fever, and it was quite in his brain. I 
had seen him in an excited state when he was in my house on 23rd 
December last. Deceased had also told me he was sorry for 
panel's wife, for she was a very nice woman. It was for these reasons 
that I advised deceased not to go near panel on the 7th of January. De- 
ceased made no answer to my advice, but put his boots and coat on 
He left sometime between 10 and 11. The only times I saw panel in 
my house were the 23rd December and New Year's Day. On the 
last occasion he merely called in a cab. So far as I saw he was sober 
then. 

Cross-examined. — The first room you come to in my house was 
Paterson's work shop. There is a passage with the Homoeopathic Dis- 
pensary on one side, and my apartments on the other. Beyond de- 
ceased's work- shop you come to my room, and enter through it to 
deceased's bed-room. It was about 9 that panel came to see de- 
ceased on 23d December. They had one tumbler of toddy in my 
room, and went out together. It was shortly after this that deceased 
told me panel had gastric fever, and that it was quite in his brain. 
On New Year's Day panel called in a cab and saw deceased in the 
forenoon ; I heard nothing pass between them except deceased saying, 

VOL. IV. U 



306 CASES BEFORE THE HIGH COURT 

No. 61. ' Milne you're not going to stop, you're going to the pantomime.' 
asander ij« nere were p^pfe ^ tne ^^ wnom j supposed to be panel's wife and 

H* hCourt c ^^ ren# ^ e P«iel said something about going to the pantomime, 

Feb. 9, 10, and that his wife was not coming out of the cab. Deceased was 

ll » 1868 - home on Monday evening the 5th by 11 or 1 1.15. I did not go out 

Murder, early on Monday morning the 6th. He was not later of coming home 

on Tuesday evening than 11.15 or 11.30, and he was not out on 

Wednesday morning till he went to panel's, and he could not be out 

without my knowledge. Deceased was a fine gentlemanly, good* 

natured man, about 29. 

Peter Cameron, Cutler. — On 7th January panel came into our 
shop (West Register Street), and asked to see a dirk or stiletto which 
was in the window, I took three out of the window and showed them, 
he chose one, the weapon libelled is the one. He put it in his pocket 
and said that would do, and then he asked the price, I said 3s. 6d., 
he paid, and went away Panel said nothing else; nothing. else 
passed. He was quite sober, but he smelt of drink — nobody was with 
him but a boy ; William Buddiman was in the shop. 

Cross-examined. — Panel looked calm and quiet— no shaking of the 
hand. I never saw him before, but I can swear panel is the man. I 
saw him again on the Saturday following. The smell of drink was 
like fresh drink. 

William Buddiman.—- I saw Cameron sell the stiletto to panel 
between 9 and 10 of the morning of the 7th. Panel looked at it for a 
while and said this would do. He took it out of the sheath to look at 
the blade. He said nothing else ; he seemed sober. 

Cross-examined. — Panel turned towards St. Andrew Square when 
he left. 

Helen Milne. — I am a daughter of the panel, and am 8 years of 
age. We lived below the shop of my father. I have no sisters, but 
two brothers, William Alexander and James Lorson — William is 6, 
James is 4. Nobody lived in our house but my father, mother, bro- 
thers, and myself. No servant. There is a stair from the back shop 
down to our kitchen, the first place is our kitchen. I knew deceased, 
he lived in 5 St. James 1 Square. Last time I saw him was on Wed- 
nesday, that day he was killed, mamma was taking her breakfast in 
the kitchen when I saw him. I was in the first room, my brothers 
were up stairs in the back shop. I saw deceased at the door of the 
first room I was in leading to the area. There is a door from the area 
to the street, but it is kept locked. I did not see where the deceased 
had came from. He was running out into the area saying he was 
stabbed. There was nobody in the room with me. I was sitting at 
the fire, mamma came into the room, and into the area after the deceased. 
I saw my father coming down the stair from the back shop to the 
kitchen a little after deceased went into the area. 



AND CIRCUIT COURTS OF JUSTICIARY. 307 

Cross-examined. — I remember a Christmas party last Christmas at No. 61. 
home, Mr. and Mrs. Kilgour, Mr. Moodie, Mr. Brunton, Mr. Millar, ^jggjj" 
and deceased were there. We were there too, I and my brothers, and H - hConrt. 
papa and mamma, the party was in the front room down stairs. I saw Feb. 9, 10, 
Mr. and Mrs. Kilgour go away, but I was in bed before the others ]i * 1868 v 
went away. On New Year's Day I went in a cab with papa, mamma, Murder. 
and my two brothers, to St James' Square to deceased ; mamma did not 
want to go out of the cab, but papa went in to deceased. We did not 
go to the pantomime, because it was too crowded. Papa said deceased 
was always very kind to me. I remember his giving us oranges the 
Saturday before deceased was killed, this was in the room behind the 
shop; papa was there. Deceased staid a good while that day. I remember 
Dr. Sidey coming, father was in bed. After the doctor went away 
I was sent for medicine by mamma. She gave me a paper and 
money, I went to Gardner and Ainslie's, I got a bottle from them 
which I took to papa. Deceased was in our house that day ; I saw 
him take up the bottle and look at the ticket, and smell the cork with- 
out taking it out. I don't know if prisoner saw deceased do that 
Papa said there was poison in the bottle ; this was after deceased left, 
and he said deceased had put the poison in. Papa did not take that 
medicine, and I was sent for another bottle the same day as I got the 
first, I took the same paper to Hearder, apothecary, Frederick Street, 
I got another bottle from him and took it home, and papa took the 
medicine "Which was in that bottle. Papa said that day that deceased 
had poisoned him with quicksilver, and that he had poisoned me and my 
brothers with quicksilver too, deceased gave me no quicksilver. This 
day papa was in bed in the back shop. This was the room where we all 
slept The day of deceased's death was the first day we had a fire in 
the front room down stairs, that week mamma put on the fire at papa's 
desire, I don't know what for. The night of the day I went for the 
bottle after I was in bed I heard a noise at the front door, papa said 
there were thieves there, he cried out ( thieves;' papa went to the 
front shop, mamma and all of us were crying, we were very frightened. 
Papa came back again into the back room a little while and then went 
down stairs, I was asleep before he came back ; the same day he said 
something about cigars, I don't know what. Deceased had before that 
gone out one day with my brother Willie to buy cigars for papa, and 
Willie had come back with the cigars, but without deceased returning. 
When I saw papa coming down the back stairs, (after deceased cried 
he was stabbed), he was white in the face and had on his top coat, he 
had nothing on his head. 

Re-examined. — The prisoner at the bar is my father. 

To the Court. — Papa was keeping his shop the day before deceased 
was killed the same as usual. My mother kept the shop the day my 



308 CASES BEFORE THE HIGH COURT 

No 61. father was in bed ; my father was in bed on the Sunday before deceased 

A ^hT e < ! ep was kiUod ^ da y- 

Margaret Finlay. — In January last I was living with my sister 

Feb. 9, 10, in Stockbridge. I was in Frederick Street between 11 and 12, about 
11 * 1863 - 11.20, on the 7th January, I was on the east side of the street, and 
Murder, when I was passing panel's shop, I saw a gentleman in the area 
dressed in a suit of black with a top coat and a hat ; he was standing. 
At first I saw nothing particular, but all at once he rushed to the north- 
east corner of the area, he put his knee on some flower boxes and got 
over the railing, his hat fell off into the area as he was getting over, 
that was all I saw, I went on and did not look round ; I returned the 
same way between 12 and 1. On the mound I had seen the police 
going with stretchers, and I saw they went to the shop next panel's, 
and I then learnt that a man had been stabbed. The gentleman I 
saw in the area I had never seen before, I did not hear him speak, 
and what I saw was merely in passing. 

John Watson. — Criminal-officer. On Saturday last I made mea- 
surements at panel's premises. From front door of front shop to top 
of back stair 25 feet 11 inches ; there are 13 steps in that stair, there 
is a passage from kitchen below to front room ; from the foot of stair 
in kitchen to the door leading from front room to area 26 feet 5 inches. 
From the area door to flower-box 13 feet 4, flower-box is 3 feet 7 
inches high, from top of flower box to level of Frederick Street is 3 feet 
7£ inches, from top of box to top of parapet wall north of area is 4 feet, 
height of railing in front is2 feet 10; there are no spikes, but a smooth rail 
on top, the railings to the north are 3 feet 2\ inches with the spikes, at 
the north-west angle there is no spike. I saw the premises on the 7th 
January, there has been no change to affect the measurement since that 
James Lyons, aged 14, apprentice to Miller, a Plasterer.— -On 
Wednesday 7 th January, about 11.15, I was passing up the east side 
of Frederick Street, and as I passed by Milne's shop, I saw a man 
leaning over the front railing of the area, and a woman in the area 
handing him his hat, he took the hat from the woman. The man said 
run for a doctor I am stabbed. He said this either to ma or to the 
women. Then he put on his hat and ran into Forrester the baker's 
next door to panel's, the two doors enter from the same outside stair. 
I stood at the door, a gentleman in the shop opened the man's vest, 
then I saw his shirt all blood. The gentleman told me to go to 
Hoarder's for spirits of ammonia, I went, and Hoarder brought over 
the spirits of ammonia himself. When we came back the wounded 
man was still in the front shop, but he was then taken into the back 
shop. I then went away and saw no more. 

Bruce Allan, Chemist, Howe Street. — On 7th January I was 
passing along the east side of South Frederick Street about 11.15, to 



AND CIRCUIT COURTS OF JUSTICIARY. 309 

11.30. I saw the deceased Paterson resting on the railing, standing N°- 61. 
on the street, in the act of putting his hat on, I thought he was faint- Milne. 
ing, and went to his assistance, he put his right hand to his left „. . ^ tt 
breast and said, ' Oh, I'm stabbed!' he then let go the railing with his Feb. 9, 10, 
left band and staggered up the steps into Forrester's shop. On his n » 1863> 
way up his hat was falling off but he caught it. I followed into the Murder. 
shop. Deceased tried to sit down on a bench, but he slid to the 
ground and rested with his back on the form, repeating the words * Oh, 
* I'm stabbed 1' A woman, Rodgers, (No. 14) was sent for a cab and 
a constable by me, I also sent a boy, Lyons, to Hearder's. When I 
was standing on the landing in front of Forrester's, panel came out of 
his shop and came up to me and said, the fellow has been poisoning 
my wife and my children, I have caught him in bed with my wife, I 
am suffering from poison too. He appeared to be calm and sober. I 
put my hand on his right shoulder and gently pushed him into his 
shop, saying ( go into your shop, sir, and don't attempt to escape,' he 
said ' all right, sir,' and went in quite quietly. I then went into For- 
rester's and undid the vest of deceased, I found his linen saturated 
with blood, then Dr. Hearder came bringing the stuff I had sent for. 
He and I carried deceased into back shop and examined him, and 
found a wound an inch long in the left breast opposite the region of 
the heart ; he was alive then, but not conscious, and almost imme- 
diately afterwards died after a few convulsive respirations. From the 
time 1 found him leaning on the railings till his death would be 10 to 
12 minutes. He became insensible immediately after the second time 
he repeated the words * I'm stabbed.' I went out again to the land- 
ing, and panel again came to me and said let me in to speak to him ; I 
asked him where does the man reside, he then said St. James' Square. 
I said to him * you can't get in here, sir, you've made a pretty job of 
4 the man, he is unable to speak to you, go into your shop, sir, until, I 
4 put you in charge of some one,' he said ' all right, sir,' and walked 
quietly into his shop. He had at this time the same appearance of 
quietness and sobriety as before. I got a constable in Frederick 
Street, John Stewart, I took him into Forrester's and shewed him the 
body, and then I went with him into panel's shop, and finding him 
standing beside bis counter I said to the constable, 4 there is the man.' 
I had previously mentioned to the constable that I thought it was a 
case of murder or something like it, the panel then answered ' all right, 
4 sir,' I then left the constable in charge of panel and sent another 
constable to him. On the Friday following, I identified the body of 
the deceased in the Police Office. When panel made this charge of 
poisoning, &c. against deceased, I inferred that it was true ; this I in- 
ferred from his calmness of manner. I looked to see if deceased's 
dress was at all out of order, as indicating that he had been in bed 
with panel's wife, but I found it all quite in order. 



310 CASES BEFORE THE HIGH COURT 

No. 61. Margaret Rodgers. — On the 7th January I was in Frederick 
M^e Street, in Forrester's shop, a little after 11. I was standing at the 
counter, deceased came in flinging up his arms, he fell down with his 



Feb. 9, 10, bead on his hands, then I stooped down and asked him what was the 
]1 » 1868> matter, and he said ( I'm stabbed, God, stabbed. 1 Allan sent me for a 
Murder, cab and constable. When I came back he was still in the front shop, 
but when Dr. Hearder came he was taken into the back shop, then 
I went out again to look for a constable, then I came back, and he was 
dead by that time. Then I went into panel's shop within the door, I 
asked him to give me the person's address ; he said it was No. 5 St. 
James' Square or Street, I am not sure which, and he was a working 
jeweller, he said a that twice over. Panel was very white; he said nothing 
more to me. 

Cross-examined. — He was quite sober and quiet, and spoke quite 
distinctly. 

George Jonathan Hearder, M.D. — My brother Thomas keeps a 
chemist's shop in Frederick Street. On 7 th January a boy came 
asking for spirits of ammonia saying a man was stabbed, I went with 
the spirits of ammonia to Forrester's shop and found the wounded 
man in the front shop alive but unconscious, pulse imperceptible, 
Allan and I carried him into the back shop, and there he died in about 
5 minutes. I assisted at the post mortem examination, [identifies de- 
ceased's clothes.] Immediately after deceased died I went to panel's 
shop ; I saw panel with a constable, he appeared quite calm and col- 
lected, he was very pale, to all appearance he was sober. I asked the 
constable if notice had been sent to the office, he said he could not 
leave the panel, on which panel offered to go with constable, meaning 
to the Police Office. The report of the 9th January is subscribed by me, 
and is a true report. 

John Stewart, Constable. — I went on the summons of Bruce 
Allan to Forrester's shop and saw deceased lying on a sofa. Then I 
went immediately with Allan into panel's shop, I found panel alone 
inside the counter standing. Allan said, ' there he is, 1 and went away. 
I said to panel, what has happened ? He said, I gave my working jewel- 
ler a prog. I said what with ? He said with a dagger. I said where 
is it ? He then took it out from about his person. I made a grasp at 
it, but he drew back and I missed it ; but I grasped it again and got 
it. I now see it in court; it was in a sheath. Then be began talking 
about deceased ; he called him Paterson — putting poison in his drink, 
he said he had been doing that for some days in order to get his busi- 
ness and his wife ; he talked a good deal about this. He said he 
caught him on the top of his wife the Monday before ; he said he was 
a blackguard for running after married men's wives, he then said 
he did not mean to give him much, but just to give him a touch. He 
asked me several times where Paterson was, if he had gone home, or 



AND CIRCUIT COURTS OF JUSTICIARY. 311 

where else he was. I did not tell him. Then M>Cabe came, I had No. 61. 

been 10 minutes with panel by that time, he on one side of the coon- ^Une*** 

ter, and I on the other. He walked up and down ; he seemed sober, ■■ . 

1 saw nothing odd about his manner, he seemed quite cool and calm, Feb. 9, 10,' 

and spoke quite in the ordinary way. We got a cab as it was very il > 1868< . 

wet, and when panel got into the cab to go to the office, he gave me a Murder. 

shilling to pay the cab ; he said I'll go any place you like with you. 

Hade no resistance. 
Cross-examined. — Nothing was said when I took the dagger. 1 

smelt no drink on him. During the ten minutes I was with him, he 
waa walking about inside of the counter, but sometimes standing — 
not sitting down. He had on a Highland cloak and leggings. I said 
we would see about the poisoning as well as the rest of it. This I 
said in order to keep on good termB with him until 1 got assistance. 

To the Court — I put the dagger in my pocket without unsheathing 
or examining it, and gave it in the same state to Lieutenant Cowan. 
Panel said nothing to me about his having been drinking. 

Andrew M'Cabe, Policeman. — I went to panel's shop on 7th 
January and found panel and Stewart. Panel asked Stewart if the 
man was much hurt. I don't remember Stewart giving any answer. 
We removed him to the Police-office in a cab. I asked him in the cab 
what he had done to the man. He said he had stabbed him, and he 
gave as a reason, that Paterson had laid his wife on the sofa and got 
on top of her. This was not in answer to a question ; I think he said 
this more than once. 

Crose- examined. — I smelt no drink on him, I thought he was sober. 
I remember his saying something about Paterson trying to poison 
him, but I did not pay much attention to that. He said also something 
about a lantern, but 1 don't remember what. He said that Paterson 
had dropped or shook something over his drink, 

William Cowan, Lieutenant of Police. — I was on duty when 
panel was brought up on the 7th. I asked his name, &c, and he an- 
swered all these questions distinctly. I then asked Dr. Littlejohn in 
presence of the panel what injuries Paterson had sustained. Dr. Little- 
john explained the injuries, and said Paterson was dead. Panel said 
nothing on this, and did not seem agitated. The announcement 
seemed to have no particular effect on him. 1 then asked him what 
he had got to say about this. He gave no answer to this ; I gave him 
no time to answer it, I followed it up by asking if Paterson and he 
were intimate. He said that he had been confined to bed for some- 
time, that Paterson had been in the habit of coming about him to re- 
ceive orders about work. That Paterson had intentions upon his life, 
that he first became aware of this on the night of Monday after 
Christmas, and that night Paterson was having refreshment in Milne's 
room, that Paterson took out some mercurial stuff, and filled the room 



9 312 CASES BEFORE THE HIGH COURT 

No. 61. with a dense gas, that he felt difficulty in breathing and sleepy, that 
Milne. ne 8aw Paterson take up his little daughter and put paper in her noe- 
High Court. tr *k> tnat ** e tnen endeavoured to look for his wife, and after some 
Feb. 9, 10, time saw her on the other side of the room with Paterson on a sofa. 
' I asked him about Paterson — was he using liberties with her? He 

Murder. ga j^ veg ^ ne wa8 on t k e top of her. He said he could not call out or 
do anything ; that Paterson had put poison in his drink, he had seen 
him put white silver-like stuff and small black stuff. Then holding 
up his hands, he said, * see I am poisoned, my whole body is poisoned. 1 
He said Mrs. Milne had expressed preference for Paterson, aaying he 
was a better man than her husband ; that after that night, Paterson 
kept out of his way and sent his man the messages to him (paneL) 
That on the morning of the 7th, the man came to ask about some 
work, and panel said why does not Paterson come himself, tell him to 
come. Paterson came, and when he entered, panel asked him now 
what is this about my wife, what have you been doing with her. 
That Paterson answered with a light derisive laugh. That panel 
could stand it no longer, and just then gave him the stab. I showed 
him the dagger which I had got from Stewart, and asked him if that 
was the weapon he had stabbed him with, he said, * yes it is.' His 
manner was calm, he hesitated a good deal as if for want of words to 
express himself, there was no excitement I could see about him. 
Within an hour I made notes of the whole of his statement, and I am 
satisfied the account is correct. The only peculiarity I observed was 
that he was sour and sullen. His great object seemed to be to ex- 
plain and account for what he had done. He did not wander to other 
subjects. He took about 10 or 15 minutes to make the statement 
He was standing all the time, and there was nothing restless in his 
demeanour. I have frequently seen prisoners under delirium tremens. 
Cross-examined. — Dr. Littlejohn asked panel if he had been drink- 
ing. He said no ; but when the Doctor put his nose close to the panel's 
mouth, he (panel) said he had some brandy or brandy and water that 
morning. He was certainly not under the influence of drink. Dr. 
Littlejohn was present all the time. I cannot recollect that panel 
mentioned any of the circumstances more than once. He may have 
said more than once that Paterson had been poisoning his drink, but 
it was quite connectedly following out the details of his story. I think 
the word * blowing 9 or ' blown' was used by the panel in connexion 
with the statement about the gas produced by Paterson. I think he 
meant me to infer that he could not call out or do anything. He may 
have used the word quicksilver. I saw panel in his cell same night 
about 5 o'clock ; he was lying quietly, and I did not disturb him. My 
examination of him was over before 12.30. At 10 next morning he 
was taken before the magistrate. 

Henry Duncan Littlejohn, Surgeon of Police. — I found the body 



AND CIRCUIT COURTS OP JUSTICIARY. 313 

of deceased in Forrester's shop between 12.30 and 1. He was dead, No. 61. 
but quite warm. I had the body removed to the Police-office, and ^JSSe*' 
informed Lieut Cowan of the case. Panel was brought into the Lieu- flj hCoprt 
tenant's room, he was pale, and had appearance of languor and de- Feb. 9, 10/ 
pression, like that produced by recent drinking. His hand was tre- u > 1863 - 
mulous as he laid it on the bar. I said, ' You have surely been drink- Murder. 

* ing ?' He said, 4 1 have not.' I said, c Come a little nearer that I 
1 may smell you.' I found an unmistakeable odour of spirits. I said 
again, ' You have been drinking.' Then he admitted he had taken 
a little brandy and water that morning. I told the Lieutenant that 
he was not so much under the influence of liquor but that he might be 
examined. I told the Lieutenant, in panel's presence, that Paterson 
was dead ; this seemed to make no impression on panel. He then, 
on question, said Paterson was on intimate terms with him, and 
worked for him, and came much about him. I then asked how this 
had occurred. He said Paterson had designs on his life, and he had 
only found it out on the 29th December. That Paterson had attempted 
to poison him and his family, that on that night Paterson had taken 
some mercurial stuff from his pocket, and filled the room with vapour 
or gas, which made him confused and sleepy. He said the children 
had been attempted to be poisoned by Paterson putting pieces of paper 
or white stuff in their ears or nostrils, I forget which. He said the 
vapour occasionally cleared away, andi enabled him to see these at- 
tempts on his children, and also to see Paterson on the sofa with his 
wife ; that Paterson was taking liberties with her. That he had seen 
Paterson put white stuff or black stuff into his (panel's) liquor. That 
Paterson had avoided him since that night, and that on the morning 
of the 7tb, he had sent through Paterson's boy a message that he 
wanted to see Paterson personally. That on Paterson coming, he 
taxed him with improprieties with his (panel's) wife, saying, ' what 
' is all this you have been doing with my wife ;' that Paterson had 
made light of it, and laughed derisively, and he imitated the laugh, 
saying, ha! hal and then he (panel) struck at him with the knife, 
which was exhibited ; he acknowledged that was the weapon he used. 
I said, ' Now, Mr Milne, I am a medical man, and I see no marks of 

* poisoning about you ;' he said, c I have been poisoned, Doctor, my 

* whole body is poisoned.' The Lieutenant asked him if Mrs. Milne had 
given him any cause for jealousy, and the answer was, that Mrs. Milne 
had said to panel that Paterson was the better man of the two. He 
appeared perfectly to comprehend every question that was put to him. 
When he was about to make a strange statement, it struck me that 
he hesitated a good deal, as if he were pondering his answer. There 
was nothing else remarkable about his manner. He was not excited, nor 
restless. I felt his pulse before I allowed his examination, it was 90, 
quick and weak. I suspected he was about to enter into that state of 



314 CASES BEFORE THE HIGH COURT 

No. 61. delirium tremens, from the languor, state of his pulse, the smell of spirits, 
Mnro.° r an< ^ ^ e trema l° us hand. There were no symptoms of delirium tremens 
Hi hCo rt on ^ m at *^ e ^ mQm * can sa 7' ^ rom *" B state i that he could not have 
Feb. 9, 10, had an attack of delirium tremens within 24 hours before I saw him 
n » 1863 * in his cell between 8 and 10 ; he was lying apparently sleeping ; he 
Murder. na j \ )een on the ordinary police diet of milk and bread. I saw him 
next morning about 9.45, to see if he was fit for declaration. He was 
greatly better. He had cleaned himself his face had lost its paleness, 
his hands were no longer tremulous, his pulse was about 75, still 
weak. I learnt he had passed a quiet night. He knew me again, 
and said he had passed a confortable night. I then asked him if he 
had any more to say about the occurrence of yesterday. He then said, 
it was entirely by mistake if Paterson was wounded ; he was then 
about to explain further, when I warned him to reserve his examina- 
tion for the magistrate, but he insisted upon going on to say, that he 
had the dagger accidently in his hand, and was aiming some blows at 
a part at the top of his back stair ; that he had sent for Paterson 
about some work, and hearing him in the shop, had called to him to 
come in ; while he was making these stabs at the part, that Paterson 
came quickly in, and the dagger accidentally entered Paterson's body. 
His manner this morning was much more firm and collected ; none of 
the hesitation of the day before. I reported to the Procurator-fiscal 
that he might be examined. I assisted at the post mortem examina- 
tion. [Proves report]. 

Dr. Littlejohn then read the medical report, which 
minutely described the state of the body and clothing, 
and attributed death to a wound penetrating the ante- 
rior part of the heart — a wound ' which must have been 
' inflicted with a sharp instrument, and with consi- 
€ derable force.' The dagger was just such an instru- 
ment as would have produced the wound. The dagger 
bore exactly such traces as would have been expected. 

Examination continued. — The dagger shown would produce the 
wound. There seemed to be marks of blood on the dagger. The 
wound was necessarily mortal. 

Cross-examined. — On the 7th, when I saw him, he was excited, but 
depressed by drink ; he said, on the 7th, before the Lieutenant, that 
Paterson caused vapours to surge about the room. His hesitation 
was as if he were attempting to recollect. On the morning of the 8th, 
before his declaration, he was taken to see Paterson's body, and he 
showed considerable emotion ; he shed tears, and wrung his hands, 
saying, oh dear ! oh dear I has it come to this. It was after that I 
granted the certificate of the 8th. The certificate was granted be- 



AND CIRCUIT COURTS OF JUSTICIARY. 315 

cause I had heard from panel's wife that panel had been indulging Mo. 61. 
largely in spirits for some time back, and also in consequence of what ^iSS?* 6 * 

I saw on the 7th. Last Wednesday, 4th February, I visited panel — 

in prison. I asked him if he remembered me, he said, he believed I ySl 9 10 
was a doctor, but he could not tell who I was, or when he had seen ll > 186S - 
me. My name was mentioned, and then he recollected all about the Murder, 
times I had previously seen him. He then made similar statements 
as to the poisoning, and as to his wife as on previous occasions, but 
gave a different account of the manner in which the wound had been 
caused. He also stated, that on the Monday night prior to Paterson's 
death, Patersen had attempted to rob his shop. This was the only 
new statement he made on this occasion. He said, on that night he 
had heard a noise outside the shop door, and that he distinctly heard 
Paterson's voice in a crowd outside, and that he was very apprehen- 
sive they were going to rob his shop. I said|he could hardly believe 
that of a person he still believed to be his dearest friend. I said, why 
did yoa not forbid Paterson from your honse, after all you say he did ? 
I could get no answer to that ; he was silent, and hung his head. I 
asked him how he could believe in such things, and he answered, they 
were real occurrences. Last Friday I visited him with Dr. Inglis, all 
he said then was perfectly consistent with what he stated on the pre- 
vious occasion. 

He-examined. — On Wednesday and Friday last he evidently knew 
what we were come about, and that his trial was to come on to-day. 
I saw no symptoms of delirium tremens then. He did not then repeat 
so strongly what he had said about his wife. On the morning of the 
8th when he gave the new account of the mode in which the stabbing 
took place, I said, then your poor wife has had nothing to do with this. 
He gave a contemptuous smile of acquiescence in my statement. No 
farther allusion was then made to the account he had given before the 
Lieutenant. I think the wound could not have been caused by an ac- 
cidental stab such as he described on the 8th. The wound was at a 
higher part of the body than the height of the post, and the direction 
of the wound was upwards, not downwards. The post was merely one 
of the rails of the stair, as he explained to me in the prison. 

The same witness examined on matters of skill and opinion. — There 
was on the 7th something that struck me in his statements. I could 
not say that the man was fit to be judicially examined ; but on seeing 
him next day I had no hesitation in granting my certificate. I would 
not have granted that certificate if I had thought him of unsound 
mind. My apprehension of coming delirium tremens was removed. 
On the 7 th he appeared to me to have been drinking hard. 1 am satis- 
fied he had not been under delirium tremens on the 7th, or the day before. 
On the 7th he seemed to consider he had received sufficient provoca- 
tion to justify his stabbing Paterson. 



316 CASES BEFORE THE HIGH COURT 

No. 61. Cross-examined. — I cannot say whether he believed the truth of 
^Mihuf 6 ' wnat ne wa8 8a y* n S on tae 7ta * I wa8 struck with the hesitation of 

■ . . ^ his answers. I account for the clearness and consistency with which 

High Court. . * • • i 

F&b. 9, 10, panel continues to repeat everything connected with the strange story 

n » l863 - of the 7th, by the fact of the sudden withdrawal of the stimulus to 
Murder, which he had been accustomed for three or four weeks, and his sub- 
jection to ordiuary prison discipline. If they were delusions on the 
7 th, it is not surprising, from the above cause, that he should remem- 
ber them, and be able to repeat them with great circumstantiality. 

To the Court. — I do not in giving this answer assume or think that 
he believes them, but only that he remembers them. The symptoms 
I observed on the 7 th were symptoms of recent hard drinking. I 
did not think them symptoms of a past fit of delirium tremens, but 
they were symptoms of hard drinking which had gone so far as to 
render a coming fit of delirium tremens not improbable. He was not 
at that time under delirium tremens, and the fit never did come on. 

The Solicitor-General here proposed to read the 
prisoners declaration, on which 

Scott, for the panel, objected that when the declara- 
tion was emitted the panel was not in his sound 
and sober senses, and he offered evidence in support of 
this objection, being generally the same evidence as is 
to be adduced in supporting the special defence. 

The Court admitted the declaration in the meantime, 
reserving to the Court hereafter, if they shall see cause, 
to tell the jury that it is not evidence against the 
panel in respect of the condition of the panel when it 
was emitted. 

The declaration was read accordingly, and was to the 
effect following : — 

I am twenty-nine years of age, a native of Ireland, and reside in 
South Frederick Street, Edinburgh. I am married. Declares that 
on Wednesday last, the seventh day of January current, about twelve 
o'clock, James Paterson, working jeweller, residing in St. James' 
Square, Edinburgh, came into my shop in South Frederick Street to 
receive orders from me to execute work for me in connection with my 
business. He has been in the habit of doing such work for me about 
two years, and during that time usually called at my shop daily. 
From our connection in business we became intimate, and went to- 
gether to the theatre, and played at billiards, and fenced, and played 



AND CIRCUIT COURTS OF JUSTICIARY. 317 

at skittles together. We occasionally fenced together in my premises A ^^ d ' ep 
in Frederick Street with swords and sticks. When Mr. Paterson Milne. 
called on Wednesday we were on our usual footing of friendship. I HighCourt 
I was in the back-shop when he came in, and I opened the back-shop Feb. 9, 10, 
door to see who it was that came into the front-shop. The poignard n » 1863 ' 
or dagger now shown me, and labelled as relative hereto, which I Murder « 
bought two days previously for the purpose of protecting myself in 
case of my being attacked when out at night, was then in my hand. 
I had been manoeuvring with it before Mr. Paterson came. When I 
saw it was he that came in, I held the said poignard or dagger out 
with my right hand, pointing it to the stair. I did this with the view 
of letting him see I had got it. I just said, * Good day, Mr. Paterson,' 
when I made a thrust with the poignard or dagger at the wood of the 
stair leading down to the area premises. Immediately before making 
the thrust I said to Mr. Paterson, ( Take care, stand back ;' but in- 
stead of standing back, he made a quick turn towards me, and was 
struck with the said poignard or dagger. He immediately cried out, 
1 Oh, I am stabbed I' and went down the stair and through my kitchen 
and front area, reached the street, and afterwards went into the shop 
of Mr. Forrester, baker, which is next door to mine. I threw down 
the poignard or dagger on the table in the back-shop, and went down 
the stair after him to see if there was anything wrong. I immediately 
went out to the street to look for him, as I did not then know where he 
had gone to. Miss Forrester, who keeps Mr. Forrester's shop, 
beckoned to me, and I went to the shop and saw Paterson sitting there 
and several persons in the shop, but 1 was refused admittance. I 
then went into my own shop, and in a few minutes afterwards the 
police came and apprehended me. I identified the dead body of Mr. 
Paterson to-day in the Police Office when it was shown to me. The 
intention of murdering Mr. Paterson, or of injuring him, never entered 
my head, and the fatal occurrence was entirely accidental. All which 
I declare to be truth. 

Susan Henry, Servant to Forrester, Baker. — There is a door lead- 
ing from Milne's area to ours ; it is usually kept locked. When it is 
locked there is no access from Milne's area to the street, the stair to 
the Street goes from one area. 

This closed the case for the prosecution. 

EXCULPATORY EVIDENCE. 

William Hamilton, Money Order Office, Post Office, Edinburgh. — 
On 7th January panel came to me about 11 o'clock with a Dundee 
order for £2. I cashed the order. He was perfectly sober, but I 
saw something peculiar — a look, a piercing look. This look seemed 
to be fixed on me. 



318 GASES BEFORE THE HIGH COURT 

No. 61. Cross-examined for the prosecution.— -I had seen him before cash- 
^MUne* 07 *°£ an or ^ er * ^ e P re8 ^ n ted an order, but could not tell me the name 

— of the remitter, and I would not pay it He swore and struck the 

Fob. 9 10 counter with a stick, but then remembered the name of the remitter, 
11, 1863. and then I paid it, but he went away in a great rage. 
Murder. Robert Moooie. — I am in the employment of Peter Scott & Co., 
clothiers. I knew panel since November or December 1853. Before 
his marriage I lived in the same lodging with him. I was his best 
man. He was bankrupt in 1860. I visited him down to 29th Decem- 
ber last. There was a marked change on him after his bankruptcy. 
He was a kind, warm-hearted man previously — respectable and well- 
disposed. After that his eyes were different, they had a rolling style 
which I did not like. He used to talk about his business. He would 
put his hands to his head and say I am crushed, or they have crushed 
me. He would do this suddenly. He talked frequently in this way. 
I can't say I have seen him under drink after his bankruptcy. I 
have seen him excited, but I can't say if it was with drink. I have 
seen him take three glasses of whisky and water, but no more* I 
have seen him in Duncan Stewart's public-house in Frederick Street. 
Before bankruptcy he was lively and witty, but after he was dull and 
seedy-looking ; he was not inclined to join in conversation. I had 
very little dealing with him in money matters. I became frightened 
at him after his bankruptcy. On the evening of the publication of his 
bankruptcy I met him with a revolver at Duncan Stewart's. I took 
him home. I can't say whether he was drunk. He said ' Do you 
* want your money?' He was owing me some. On the road home 
he was dull, and said when he got to his house his door was locked, 
and he went to Greliche's Hotel and got some steak. He was looking 
at the revolver there, but I prevented him. I took him home again ; 
he was then living in the house above where he was latterly. I 
walked into the drawing-room, and he followed. He took his revolver 
in his hand and stood in an attitude, and cried out something about a 
death. I gave him a calm rebuke, which had the effect of his putting 
away the revolver, and he fell on his knees and gave a groan. I gave 
him a clap on the back, lifted him up, and sat down on a sofa beside 
him. I tried to console him about his bankruptcy. He said, ( Oh, 
4 Moodie, I shall go mad !' He then went to the kitchen and took up 
a carving-knife, and flourished it round his head, and ran round the 
kitchen, then dashed it into the kitchen table and broke the blade. 
Mrs. Milne was going about crying, and she at last got the police. Last 
Christmas night I went to a party at panel's with Brunton and Millar. 
There were also Mr. and Mrs. Kilgour. Milne came from the back 
shop when he came into the front shop. His eyes were rolling, and 
he was very excited and fierce-looking ; he made us all stand in a row. 
He had an old sword in his hand ; he then asked us to march down to 



i 



AND CIRCUIT COURTS OF JUSTICIARY. 319 

sapper to the tone of the merry masons. He did not seem to be in No. si. 
joke. We went down the back stair — a very narrow stair. He then ^Une^ 6 * 
made ns march round the kitchen three or four times. The supper H ighConrt 
was in the front room below. There was a friend still to come, and Feb. 9, is/ 
when his knock was heard he marched them all up to meet him. It 1I » 1868 - 
was Paterson, and this was the first time I ever saw him. We then Murder, 
all marched down again. Milne said grace— a strange long piece of 
nonsense. The company seemed to feel uneasy ; I was so. There was 
not the slightest smile on his face, he was quite in earnest. The company 
did not speak much. Milne did not drink much. He took the sword 
up often, and knocked the apples off the table. I was a little alarmed ; 
his eyes were rolling like a madman's. Mr. Eilgour and Millar left 
first. Kilgour before he went away insisted on panel delivering up the 
sword, which he did, to his wife. He put a dish on his head when 
Paterson and I were there alone. I remained after Paterson and 
Brunton, and we chatted together, Mrs. Milne being of the party also. 
We had no drink then, and very little during the night, the drink was 
done early ; it was two o'clock when I left. I called next day, and saw 
panel and Paterson with him, they appeared on very friendly terms. 
I stood three quarters of an hour ; Paterson came away with me, and 
said Milne is a strange man, and looks dangerous. I saw him again 
on 29th December at 3.30. p.m., and found Paterson there, Milne ap- 
peared in a very excited state, and took a note from Paterson which I 
had given to Paterson, and I could hardly get it back from him. 

Cross-examined for the Prosecution. — Panel was married in January 
1854. I thought him a sober man, he did not become a dissipated man 
to my knowledge, but he looked dissipated after the bankruptcy ; I did 
not see him take drink, he was a sober man after that till his bank- 
ruptcy. I did not see so much of him after that. He was always fond 
of theatrical gestures and attitudes, spoke in tragic tones, he always did 
this from the time I first knew him at ail times. It was in May 1860 
I went to see him in Stewart's public house, he owed me £4, 10s., and 
I wanted to speak to him about it It would be after 7 on a Saturday 
afternoon. I had no doubt at the time he was the worse of liquor. 
Stewart asked me to take him home, because he had been annoying 
him. I am not certain what he had to drink at Greliche's. Panel's 
shop was shut for 10 months, but was opened again two years ago. 
His wife and he have taken charge of the business all these two years. 
I don't think he was capable of taking charge of his business ; he al- 
lowed himself to become bankrupt when he was not so ; I think he 
was very much given to drink during the last two years ; I would not 
doubt but what he was in drink when I went to his party on the 29th 
December. He knew us all quite well, and did not appear to be 
aware what he was about, he ate less than the rest of us, I cannot say 



320 CASES BEFORE THE HIGH COURT 

No. 61. about his drinking ; I think there were only two decanters of whieky 

Milne ^^hed, about 2 J bottles only, to six men and two women. 

• . ^ ' Thomas Eilgour. — Upholsterer, Frederick Street. I have known 

High Court. . r ' . 

Feb. 9,10, panel some time, I was at his party last Christmas night. When we 

n > 1863 * went in, my wife was sent in to Mrs. Milne, and he desired me to stand 
Murder, outside the counter — in a military tone. He looked as if he had been 
tasting, ho smelt of drink, he seemed excited, and there was a wild 
roll in his eye which I did not like. In the course of the evening I 
got the impression there was something else than drink ; he made all the 
\ guests as they arrived fall in and march ; we complied with all this 
J just to please our host; we marched three times round the kitchen, &c. 
.,--''' &c. There was a very peculiar grace said by him — nonsensical ; he 
seemed very serious about this, and I felt very uncomfortable, it made 
my blood run cold to hear the name of the Almighty coupled with all 
the ordinary nonsense of a fairy bower ; I began to doubt whether he 
was in his right mind. He cut the haggis in a very odd way, cutting 
it all to pieces. There was not much conversation ; there was a 
damper on the company, produced by the strange grace. I was sitting 
on panel's right hand, he caught me by the hair of the head, I said, 
4 drop that,' he said, * cry murder then/ and I did so, and he let me go ; 
I thought the incident was mere fun. In the course of the evening he 
brought out his sword and fenced with Paterson, Paterson using 
a stick, I interfered and insisted on his giving up the sword, which he 
did, to his wife, who took it away, this added to my uncomfortable feel- 
ings. Paterson and I had occasion to go out to the back door, I said 
Milne is a strange roan, he said ( he w, but not a bad fellow either/ 
he said, he has been doing very well for Milne but for the grace, which 
I can't get over at all. At one time he cut an apple on a plate on the 
table in two with his sword ; this seemed good fun to him, but we did 
not like it. After the fencing scene my wife and I left, I could not 
say he was drunk, not what I call drunk, but he was under the in- 
fluence of drink to some extent. I don't think all the drink he had 
in my company would account for his conduct ; I thought there was 
something wrong , he was much the same throughout the evening; he 
drank little ; I had only one tumbler of toddy, I can't say how many 
he had. I saw him again on the 3d January, he was in bed and his 
eyes were quite glared and wild. Paterson and the panel were very 
friendly; panel spoke kindly of Paterson on the 3d January, and 
made no complaint that Paterson was not dealing fairly with him. 

Cross examined for the Prosecution. — There were few songs at the 
Christmas party. Panel sung one, the first ; all the party were quite 
sober except Panel. 

The Court adjourned at 7.10. p.m. 

Dr. Charles Sidet. — I have been a Surgeon for 40 years. I 
have attended panel ; about twelve months ago for the first time. He 



j 



AND CIRCUIT COURTS OF JUSTICIARY. 321 

was threatened with dropsy and disease of liver and kidneys. I did No. 61. 
not attend him again till 5th January 1863 ; I was sent for, I went A Jj[j||| l d * r 
into the back room behind tbe shop where he was lying ; I asked him „. .- 
what was the matter, he said be felt unwell, he suspected poison had Feb. 9, 10, 
been put into the water, he did not say whom he suspected. I then llj * 863, 
told him he had been drinking. He was quite calm, pulse quick, no Murder, 
symptoms of fever or delirium. I prescribed a camphor mixture with 
tartar emetic in it. He asked me to come back next day, but I de- 
clined, saying he was unworthy of any attendance. I said this because 
he did not when I attended him before do anything he was bid. Mrs. 
Milne was there and asked me to come back, I said I would come back 
if I could, but was much engaged. When he said the water was 
poisoned, I said he could not suppose his wife or children had done it, 
and he ought to turn his suspicions to himself, that he was I thought 
the person who was poisoning his own water, I meant he had been 
mixing too much drink with it. I was not struck with this charge 
of poisoning, I have heard the same thing in other cases before I was 
there 10 minutes ; I did not see him again till yesterday. 

Cross-examined for the Prosecution, — I had no doubt what was the 
matter with him on the 5th, he had been drinking hard. I had ad- 
vised him against it when I attended him before, he promised to give 
it up. On the 5th I charged him with drinking as soon as I saw 
him ; I told him if he continued his course he would go downwards, 
and probably much Booner than he expected ; he said he had not been 
drinking since Christmas ; I asked his wife if it was not true that he 
had been drinking, she said, c yes/ 1 think he made the statement 
about poisoning before I charged him with drinking ; he seemed quite 
intelligent. 

Re-examined. — On the 5th January his hand was firm, his tongue 
was clean, no symptoms of fever, and nothing particular about his eye. 
I proceeded a good deal on his past history in charging him with drink- 
ing. There was no smell of drink and nothing the matter with him 
that I saw, but he had the appearance of a person who had been 
drinking, he was pale and a little depressed. 

To Hit Court. — There was no appearance of insanity on the 5th, 
nothing to lead me to suspect such a thing. 

William Hill, Shopman to Gardner and AinsUe y Druggists. — 
One day in the beginning of the year I remember a prescription 
coming from Dr. Sidey, there was stamped on the paper * A. Milne, 
* artist in hair ;' 1 can't tell who brought it. 

Samuel Baird, in the employment of Thomas Hearder, Chemist. — 
I remember in the beginning of the year a prescription coming from 
Dr. Sidey, 1 mind that there was camphor, I never saw the prescrip- 
tion. It was a little girl who brought it, a girl like the size of 
panel's daughter. 

VOL. IV. X 



322 CASES BEFORE THE HIGH COURT 

No. 61. James Laino, Light Porter, 7 Carnegie Street — I have known 

A1 M? nder panel 5 vear9 - I P ut on an< * took off hiB Bnutter8 for tne laat * y 6 " 9 - Hi§ 

— ~ first shop was in George Street. On the evening of 5th January at 7 

Feb. 1 9 10 I P ut on tne shutters, I saw panel then at the door, he came forward 
11, 1863. from the back shop, he was rolled up in a Highland cloak, his boots 
Murder, on, but nothing on his head; he said to me * hush don't you see them/ 
I said, 4 who, sir,' he said, ' don't you see the robbers, they are plan- 
1 ning to break into the shop, watch them, watch them/ he did not 
point to anybody, but looked out into the street ; I looked but there 
was nobody passing ; he did not say who the robbers were. He said 
also they had been trying to poison himself, and his wife and children, 
and we have taken a little of it, but it had no effect. The shutters 
are kept in the area, I went down for them ; he then said ' watch 
' them.' He stood at the door while I was down ; I put on the shut- 
ters, then he locked the door. I smelt no drink about him, I had 
not any drink that day. I was struck with panel's look that night ; 
he was very wild and strange-looking. I never heard him speak 
about robbers or poisoning before that. I took off the Bhutters next 
morning, (Tuesday.) There was great fumbling inside to get the door 
opened ; Mtb. Milne came to open the door, and both she and panel 
were there when the door opened ; panel had on just his trousers, 
shirt, and boots, it was 9.30. a.m. Panel said they had been there, 
but had not got in ; Mrs. Milne said nothing. Nothing more passed. 
In the evening of the same day Mrs. Milne showed me an iron bar 
which had been made to go across the door ; I never saw it before. 
Mrs. Milne remarked, ( that will surely please bim now.' I never 
saw panel in such a state as on the evening of the 5th, and morning 
of the 6th. I put on the shutters on the evening of 31st December. 
I saw Milne that night ; he looked well enough that night, he ap- 
peared to be sober, nothing strange about him. 

Cross-examined. — I have seen him a little hearty about Christmas 
time, but nothing more, not the worse of drink, as far as I know he 
was not drinking hard. He was merry and joking when I saw him, 
never solemn or serious. He was sober on the 5th when I saw him. 
I had heard that he had been drinking hard, and I connected his 
strange wild look that night with what I had heard ; I did not think 
of anything else. He was moody and silent sometimes during all my 
acquaintance with him, often sulky and down-looking. I never saw 
him speak tragically, or throw himself into attitudes. Though I 
heard he had been drinking hard, he might have been living soberly 
enough for aught that I saw, except for the wild look. He had the 
same wild look on the morning of the 6th. I asked him no questions 
that morning ; he said they have been here, but have not got in, that 
was all he said, and he said it very quietly and solemnly. He had 
formerly a mild eye, now it was glaring. 



AND CIRCUIT COURTS OP JUSTICIARY. 323 

Alexander Forrest, Blacksmith, Rose Street. — On 6th January No. 61. 
panel came to my shop between 11 and 12. He said he wanted a ^aJJeT* 

strong bar for the back of his shop door. He said he suspected his 

shop had been attempted the night before. He was sober and serious. Feb, 9, loj 
He asked me to go and take the measure ; I went between 11 and 12. n» 1863. 
I smelt no drink. He was five minutes in my shop ; I was ten Murder, 
minutes measuring for the bar. Deceased came up the steps while I 
was there, I knew him by sight. Panel was there ; I said this gentle- 
man may come and give his opinion also. Panel said to deceased 
you won't enter this door ; he repeated it more than once. He said 
further, if you come in here you must come through the door. De- 
ceased gave a smile and left. All this took place outside the door. 
Panel said to me after deceased left, I am suspicious of him and 
another. He did not say who the other was. He then told me to 
put on the bar the best way I could ; he had some consultation with 
me about how it should be put on. I made the bar, and went over to 
put it on same day about 4 p.m. Panel was there, and after it was 
put on I called him to look at it. He said, I think it will do. He 
then asked me into the back shop to take a glass of spirits ; I took 
some ; I did not observe him take any. I was not three minutes in 
the back shop. Panel came to the door and said, ' I have my suspi- 
4 dona, and there is a spirit I use by which I can see other people 
1 when they can't see, pointing his finger upwards.' I saw deceased 
immediately after leaving panel's in the morning, it was about 12 
o'clock, and I went to a public-house with him. I said how is it that 
Milne and you are not so friendly as you were. He said, I don't know. 
1 said he seemB to be suspicious of you and another attempting to break 
into his shop last night. Deceased said * that would be the last of my 
' thoughts.' He said the man has been in delirium tremens ever 
since Christmas or New Year's day. I forget which he said, I think 
Christmas. I told him about the bar being ordered. I said I did 
not know if I could get it on that day. He said, ' Oh I would do it if 
' you can to please him.' 

Cross-examined for the Prosecution* — Panel was quite quiet and cool 
both times I saw him on the 6th, but there was a little stress on the 
words when he spoke about the spirit — just a little emphasis. I did 
not understand what he said about the spirit. With that exception 
he spoke in his usual way. He gave his orders quite distinctly and 
intelligently. There were marks of a dirty shoe pressing against the 
door from the outside, no other marks of violence. It is a double door 
with bolt above and below. I think the bar he ordered was a necessary 
precaution. I had known him two years, and there was nothing 
different about him that day, except his talking about the spirit. I 
made panel a present of a sword about four months ago ; I showed it 
him in my shop, and he asked me for it. I did not do it at the time, 



324 CASES BEFORE THE HIGH COURT 

Ab^Jri«- **** * too ^ '* *° *" m an( * & aTe ** ^™ *^ erwar ^ 8 - He seemed to covet 

m;i»^ , it very much. Panel took it in his hand and made a flourish with it 

High Court. roun ^ h** head. There was nothing odd in his ordering this bar, nor 

Feb. 9, io, in the manner in which he did it. 
it lug* 
— L To the Court — This is just the sort of door that requires such a bar 

Mnrdcr - for safety. 

Janet Forrester, Baker, next door to Panel. — I have known him 
for two years ; he was always civil and obliging. I once saw him the 
worse of drink in summer 1861. He was very riotous, and was taken 
to the Police Office. On 6 th January between 11 and 12 panel came 
into my shop and asked if I had heard a noise at his door the night 
before. I said I had heard the noise, but did not look out. I did 
hear a noise the night before, a kicking either outside or inside of 
Milne's door about 9 at night. I did not think it was robbers, I 
thought nothing about it Panel said his shop was going to be broken 
into. I asked what made him think so. He said the spirit told him 
so, putting his hand to his brow. No more passed. I observed no 
smell of drink, but the counter was between us. He did not seem 
under the influence of drink, he seemed quite serious. I never heard 
anything against the character of panel's wife; I believe her to be re- 
spectable. 

Cross-examined for the Prosecution. — There was nothing extraor- i 

dinary in his appearance or manner on the 6th. I was in the back I 

room when I heard the noise at panel's door on the evening of the 5th. 
It struck me as an unusual thing. i 

George Smith, Son of Mr. Smith, of Smith $ PMlpot, Auctioneers. — 
On 6th January panel came into our saloon about 12 with a parcel of 
jewellery. He wished to put it into our safe because robbers had been 
at his door the night before. I put it into the safe. My father, the 
cashier, Rutherford, and Mr. Philpot's son were present We did not be- ' 

lieve the story about robbers, we thought it all a delusion. My father ' 

asked him where were the police ? Panel answered, if I came out 
they would kill me. He said he knew they would come back again 
that night, and he was going to get iron bars for his door. We 
thought all this a delusion. We took the jewellery to please him, 
and get him away. I made an inventory, and gave him a copy. He 
was quite serious ; we tried to put it out of his head. I did not think 
he was in his right mind. Next morning about 10 he came back to our 
premises ; he had on a Highland cloak, leggings, and a Balmoral bonnet 
I was reading a newspaper ; he sat down beside me ; I smelt no drink. 
He said his wife and the man had been attempting to poison him the 
night before ; he said he wished some of us — my father — to come over 
and look at his stock, as he wished to dispose of it I asked how 
they had tried to poison him. He said he had caught the man 
shaking a powder into the tumbler of water he was going to drink. 



AND CIRCUIT COURTS OF JUSTICIARY. 325 

Nothing more passed. I thought this story 'all bosh.' Panel left No. 61. 
about 10.15 ; he was not with me above 5 or 10 minutes. My father A y^ M 
came in about 11. — — 

Cross-examined for the Prosecution. — Panel has been going about Feb. 9, lo" 
our place 18 months. On the 6th he spoke differently from before— 11 > 1863 * 
more excited in manner. Once, about the end of November, he Murder, 
brought over a brooch, and wanted £25 advanced on it, which we 
would not give him, and he came down to £10, £7, and £3, but we 
would have nothing to do with it. He then threw the brooch violently, 
and was in a great rage. There was a strong smell of drink, and he 
was excited with drink. I never saw him violent before that. He 
was not generally odd in his behaviour. I attribute his excitement on 
the 6th January to drink ; I never thought of any other cause. On 
the Wednesday, also, I attributed all his story to the effects of drink. 
He was not violent either on the 6th or 7th. It was in a low tone he 
told me of his wife and the man trying to poison him, he did not seem 
to be frightened. He connected this story with his wish to dispose of 
his stock. I thought at the time that he believed the stories he was 
telling me. 

John Smith, of Smith $ PhUpot, Auctioneers, Qeorge Street. — On 
6th January panel came to our rooms a little after 12. He had a 
parcel under his arm ; he said he wanted to speak to me ; he said he 
had brought part of his stock, which he wished me to lock up in our 
safe for a day or two. He said robbers had been at his shop door the 
night before wishing to break in. I said I thought that was strange 
in Edinburgh, and why did he not apply to the police. He said, you 
know I could not come out, if I had come out J should have been 
killed. He said he knew they would be back to-night again, and he 
was going to get a smith to make a bar for the shop door. He said 
he knew he would be both robbed and murdered. I tried to persuade 
him out of it but did not succeed. I kept his things for him. I 
thought there was something very strange in his eyes, he seemed ex- 
cited a good deal. My impression was that he was in delirium, or 
something similar. I had no doubt he was wrong in his mind some- 
how at the time. On Wednesday morning I came in about 10. A 
statement was made to me about Milne by one of my people, in 
consequence of which I gave directions to them about him. I got 
a message from panel, through my son, asking me to go over to his 
shop and see him. I did not go, for I did not think it was safe to go 
near him. 

Cross-examined, — I have known panel by sight for 5 or 6 years. 
He has not been a sober man ; I have seen him frequently the worse of 
liquor at all times of the day; he was much given to drinking. He 
had always a curious excited look for the last three years both when 
drunk and sober. On the 6th I thought there was something seriously 



326 CASES BEFORE THE HIGH COURT 

No. 61. wrong with him, probably drink had a good deal to do with it He 
^^ looked very knocked-up-Uke on the Tuesday, as if he had not been in 

bed for two or three nights : he was worse in every respect than when 

Feb. 9, 10 I na d previously seen him. I had not seen him for three weeks 
u > 18g 3' previously. 

Murder. Re-examined, — He had not the appearance of having been drinking 
much that morning; he handed over the things to us in a real 
business-like way. 

William Henderson, Accountant British Linen CoJs Bank. — On 
7th January panel came to cash a cheque rather before 11, for £3, 2s. 
on our branch at Hawick. I did not know him, and I asked his ad- 
dress, he said, A. Milne and Co., Frederick Street ; the cheque was 
so endorsed. 

Cross-examined. — When I spoke to him he smelt strongly of drink, 
and was a little excited in manner. 

John Wight, Prisoner in Edinburgh Prison. — I was a prisoner 
there on the 8th January, the sub-keeper asked me to go into the cell 
beside the panel. I went on the morning of the 9th, because there 
was something peculiar in his condition. Panel was very quiet all 
day ; I had very little conversation with him ; we went to bed a 
quarter before 8. The gas was put out, and we were lying quite quiet; 
we were in separate beds ; hef got up and came to my bed, felt all 
over my body, did not say anything, then went back to his own bed ; 
then got up again, and ran to the door, and cried ' Murder, Oh my 
* wife and children I' I lay still for a little, then got up and got hold 
of him ; he was still at the door, calling out ' Murder, Oh my wife I ' 
and ( they are murdering my wife and children ! ' He was all shaking 
when I got hold of him, and frightened like. I tried to soothe him, 
but he carried on the same way. The night watchman, M'Kay, came 
down with a light and opened the door, Milne still cried out to him 
the same words. He caught hold of M'Kay, and seemed to cling to 
him, still crying out the same thing. Panel was then taken away, 
and I saw no more of him till next morning at 6.30, when he was 
brought back perfectly quiet. Another prisoner, Martin, was put in 
with us that day, and we three have been together ever since. The 
following night he got up and began to gesticulate with his hands be- 
fore his eyes, and his eyes rolling ; we got water and bathed him, and 
he sat down, and said he wanted morphia, and began to cry ; we then 
got him quieted. I thought from all this the man was not right in his 
mind. I was a little frightened for him at first. The first week he 
told me some policeman came and knocked at his shop door, then he 
said they were not policemen, but Paterson and Kilgour. I said that 
was nonsense — he said he knew Paterson's voice. He said Paterson 
and Kilgour were dressed as policemen —he said they wanted to break 
into the shop — he said Paterson was poisoning him, (this would-be on 



AND CIRCUIT COURTS OF JUSTICIARY. 327 

Thursday or Friday of the first week), that he had given him a poison- No. 61. 
ed cigar, and that he used to put stuff into his drink—poison. That MUneT* 
Paterson put something in his mouth and chewed it, and blew a gas „. , ^ 
out of his mouth all through the house. He said the skin was coming Feb. 9, 10, 
off his hands and his feet in consequence of the poison. I looked at 11 » 1863 » 
his hands and feet, and it was nothing but the outer skin scaling off Murder, 
for want of work. All this occurred in the first and second weeks 
after he came to prison. He said the vapour that Paterson made 
affected his eyes, and coloured his face and his wife's ; and then he 
said Paterson gave his wife a signal, and she went away down stairs, 
Paterson followed, and that Paterson had then had connexion with 
her; he always hammered and spoke about it, and we never paid 
much attention to what he was saying. 

The witness was here removed, and 

The Lord Justice-Clerk, addressing the prisoner's 
counsel, said, that the evidence they were now leading 
was of such a nature as to bring down the prisoners in- 
sanity to the present time, and if this was proved, the pri- 
soner could not be discharged, but the Court would have 
to give an order for the disposal of his person under the 
provisions of the Lunacy Act, 20th and 21st Vict. c. 81. 

Scott said that at the time the crime was committed 
the prisoner was labouring under insane delusions, and 
these had continued up to Friday last. 

Witness recalled — 

Panel slept very little the first week after 12 o'clock. 

Cross-examined. — I have been in the same cell with panel from 9th 
January up to this day. There is no difference in him, he is the same 
now as he was at the beginning ; the first night he had been asleep 
for three hours before he got up. He got up quietly at first, and was 
quite silent while he was feeling over my body. He sat down on his bed, 
and was there a couple of minutes before he began to cry out. He 
was quite quiet the next day ; his conduct was correct. I asked him 
what he thought of the way he had carried on last night ? He said it 
was just the dream about his wife and children. He said he had 
dreamt that some person was then murdering his wife and children. 
Next night he was sleeping quiet the first part of the night, before he 
got up, and began with his hands clearing away the mist before his 
eyes, he was not asleep, for his eyes were open. I did not ask him 
about that the next day ; I thought he had been dreaming then. He 
spoke to me during the day of the murder of his wife and children, 
and of the poisoning by Paterson as being dreams, that he thought he 



328 OASES BEFORE THE HIGH COURT 

No. 61. 0aw these in dreams. He did not speak of the vapour scene as a 

Milne, thing he had seen in a dream. He said he had seen this quite dis- 

High Court. ti nct ty when awake. On the Saturday of the first week, he told me 

Feb. 9, 10, he was there for murder, hut he did not say who was murdered, and 

— ! L I did not ask him. I did on Monday or Tuesday following, and he 

er ° said it was Paterson, but that he was not murdered, but the police had 
been keeping him locked up out of sight. He said that after he was con- 
demned, Paterson would come and marry his wife, and get the business 
to himself. I said that was nonsense, but he said it was truth. He 
said he was standing in the shop playing with a dagger he had bought 
that morning when Paterson's man came, and he told the man to send 
Paterson as usual ; that he was still playing with the dagger when 
Paterson came in, that he told him to stand back, but Paterson rushed 
forward, and the dagger touched him in the coat, and Paterson rushed 
down a back stair ; that he looked at the dagger, and saw that there 
was no blood on it, and he put it in its sheath, and then followed 
Paterson, and saw him climbing out of the area ; that he then came 
up stairs, and out at the shop door, and saw Paterson sitting in the 
baker's shop, and then a policeman came. Then he said he had seen 
Paterson's corpse lying in the Police-office next day ; he was quite 
firm in stating this. He then commenced dancing and singing. Mar- 
tin was there and heard all this. He then said that the stab was an 
accident; that he was his friend, and had always liked him well. 
This he said on the Tuesday, and since then frequently. He never 
gave me any other account of the stab— never said anything against 
Paterson ; and never said he had ill-will at him, or as if Paterson de- 
served to be punished for what he had done to him. He always spoke 
of the stab as an accident. It was on the Tuesday (following the 
Monday on which he told me all about the stabbing), that he first told 
me about the vapour, and Paterson having connexion with his wife. 
It was not in connexion with the stabbing that he stated this. He 
has been frequently dark respecting the same story down to the pre- 
sent time, and he always calls him his friend. He never spoke of 
Paterson to me as a man who had injured him, except in the particular 
story of the vapour, and what followed on it ; and he frequently still 
repeat* that Paterson is not killed, and is kept locked up by the 
police ; but he has never again stated that he saw Paterson's corpse 
in the Police-office. I have not recalled that to him. He did not 
speak foolishly on other subjects, nor does he. He tells us this story 
every day, suddenly breaking out with it, and walking about while he 
tells it, and then when he finishes it, falls to dance and sing. 

To the Court. — He told the same thing to the under-keeper of the 
prison, Neilson, as he told to me and Martin. Neilson visits us every 
morning before 7, and panel has frequently repeated all these stories 
to Mr. Neilson. I am under a charge of house-breaking. 



AND CIRCUIT COURTS OP JUSTICIARY. 329 

George Martin, Prisoner in the Prison of Edinburgh. — On the 10th No. 61. 
of January morning I was put into same cell with panel. He was ^n^** 
quite quiet that day — he looked strange. That night he started in ■ 
his sleep, and raised out of bed, and cried for morphia, and tried like Feb. 9, 10, 
to clear mist from his eyes. I got water and bathed his forehead and n > 1868 « 
hands ; he was quite awake ; his eyes were rolling in his head ; con- Murder, 
tinned 5 minutes this way. He said he was lying in his bed wide- 
awake, and saw his wife and family murdered. I said it was a dream, 
he said no, it was not a dream ; he wept much after this, and then lay 
down and slept. About 3 a.m. I saw him lying on his bed reading ; 
I think it was a Bible. On Monday morning after Neilson came, he 
told him what had occurred on the Saturday night ; he spoke of it as 
a reality and not a dream, and he wanted men sent to guard his shop 
to prevent its being robbed. He said his skin came off his hands and 
feet from being poisoned. I tried to persuade him out of it, but he 
told me I was a fool. He spoke of Paterson, said he gave him a poi- 
soned cigar the morning after Christmas. He said he felt a mist over 
his eyes after it, and vapours. He said he saw Paterson's body in 
the Police-office, but that he thought he was shamming, and that he 
would rise to take away his business and his wife. He said he had 
seen Paterson in the cell between 11 and 12 o'clock at night, and he 
had told him he was in business on the south side, and that he was 
drawing £5000 a-day, and that he meant to take away Milne's name 
altogether — he did not say he dreamt it. It was last Monday morn- 
ing he told me this. I spoke to him about his trial, but he did not 
Beem to take notice of it, or to care about it. He was more interested 
about mine. 

Cross-examined for the Prosecution. — He said he knew he was to 
be tried for the murder of Paterson — he said this last Thursday. He 
was serious in saying that Paterson was in the cell last Thursday week. 
When he spoke of a poisoned cigar, he said he had a banquet in his 
house on Christmas night, and he mentioned the names of the com- 
pany, and said they had a grand march up through his jeweller's shop 
and down again ; he said his room wall was all hung with holly leaves ; 
that he showed the company some swordsmanship, and was cutting 
apples through the middle off a wine glass, but he gave up the sword at 
the request of the company, not to offend them ; that he sung a song 
that night ; that next day he was lying badly, and Paterson came 
to his house to see how he was, and gave him a cigar out of his 
case, and took a cigar out of his pocket, not out of the case, for himself, 
that after he smoked it, he saw vapours, and that he got some poison 
among his drink ; that Paterson called again on Saturday following, 
and put poison in his drink. That on Monday following he was lying 
in bed, and there was a mist round his eyes, and he saw Paterson 
having connexion with his wife ; that next night, the shop was at- 



330 CA3ES BEFORE THE HIGH COURT 

No. 61. tempted to be broken into, and he heard the voices of Pateraon and 
^MUne! 6 * KHg our at the door; tnat he asked who was at the door, they said, 
the Police ;' that he asked what they wanted, and he saw there was 



High Court. 
Feb. 9, 10, a crowd round his door ; that he told the police to keep the crowd 

u > 1863 - quiet outside ; that same night he told his wife he was dying, but his 
Murder, wife took no notice ; that next morning he rose and went to the Post- 
office, and then to the Bank, and from that went and bought a dagger 
to protect himself from garrotting, and from shop-breaking ; that Pa- 
tenon's man came for work, but he said, why did not Pateraon come 
himself; that Pateraon came in by a small door, and panel having the 
dagger in his hand playing with it, and Pateraon had run forward on 
the dagger, but he did not think he was stabbed, but he ran down 
stairs, and got out and over the area rails ; that he found no blood on 
the dagger ; that he gave it to the policeman ; that he was taken to the 
office, and he asked where Paterson was, and some one told him Pater- 
son was gone home. That he was brought up for murder of Paterson 
next morning, and he was quite astonished ; that he was shown the 
body of Paterson, but he did not believe he was dead, but that he was 
just scheming to get his wife and his business. He told me that Pateraon 
and Kilgour had taken the jewellery of his house to the Music Hall, 
and had made money by exhibiting it. He said if Paterson was 
stabbed it was an accident. He said he never stabbed him ; he spoke 
as if he liked him, and continued to like him. In telling these stories, 
he did not seem to know what he was saying — his mind seemed to be 
wandering. He told me this story very often, and bits of it at a time. 
He told it the same way always, but not always the whole story. He 
never connected the stabbing of Paterson with his poisoning him and 
debauching his wife. He said Paterson was injuring him, but still he 
spoke well of him. He is just the same now as ever, and telling bits 
of the same story from time to time. 

To the Court. — Sometimes he knows that Paterson is dead, and 
says ( poor Paterson;' at other times he can't believe it. 

Hugh M'Kay, Warder in Cotton Prison, Edinburgh. — Panel came 
on the 8th January. Wight was put into a cell with him on the 9th, 
On the evening of 9th I heard great shouting of ' murder' and kicking 
at the door of panel's cell. I went down and opened the door ; panel 
was clinging to Wight and shouting ' murder.' As soon as he saw 
me he clung to my shoulders, and said ' Oh, will you protect my wile 
' and children.' This was about midnight. Wight appeared very 
much frightened, and was crying out too. Panel told me he had been 
visited by three men the previous day, who said they were doctors, 
but they were conspirators, and there was a conspiracy on foot to 
murder his wife and children. I pacified him by removing him to a 
padded cell, and telling him I would get the police to protect his wife 
and children. He was quite awake, he went quietly to the padded 



AND CIRCUIT COURTS OP JUSTICIARY. 331 

room. He aat down on a stool, and remained same hours without No. 61. 
sleeping. I sat on opposite side of room. He seemed in great distress A w? nder 

both of body and mind. His eyes had a fixed stare, and were directed — : '— 

at me. About four he stood up and examined a button of my coat, p| b 9 % 
and said ' My God, I know where I am, you are the jailor !' He ex- 11 f 1863. 
amined the button for several seconds, he drew his hand across his Murder, 
forehead, he then went back to his stool. After he had sat for about 
an hour he got up and said ( My name is Norval, on the Grampian 
hills.' About 6 a.m. I gave him in charge to another warder. In 
the course of the morning he asked me if his wife and family were 
Bafe. I told him to quiet him that I had put a guard on his house, 
and that they were safe. 

Cross-examined for the Prosecution. — I had no conversation with 
him after this, but when I saw him he seemed composed and settled. 
He seemed to me that night and morning to be in an early stage of 
delirium tremens. I have often seen such cases. 

To the Court. — I reported to John Livingstone, the head warder, 
what state he was in. He was not treated for delirium tremens. 

The general evidence for the defence being closed, 
and the medical evidence being about to be opened — 

The Lord Justice-Clerk said he might take the 
opportunity of telling the jury that under a recent 
Act 1 it was competent for them at any stage to inter- 
pose, when they found that sufficient evidence had 
been adduced to prove that the prisoner was presently 
insane. He did not now state this as indicating any 
opinion on the part of the Court whether they ought 
or ought not to interpose, but simply to inform them 

1 The Act 20th and 21st Vict, c. 81, provides, sec. 87—' That 
1 where any person charged upon any indictment or criminal libel 
( with the commission of any crime, shall be found insane, so that such 
1 person cannot be tried upon such indictment ; or if, upon the trial of 
1 any person so indicted, such person shall appear to the jury charged 
1 with such indictment or criminal libel to be insane, the Court before 
1 whom such person shall be brought to be tried as aforesaid shall 
' direct a finding to that effect to be recorded, and thereuponjsuch 
1 Court shall order such person to be kept in strict custody until her 
* Majesty's pleasure shall be known ; and it shall be lawful for her 
( Majesty to give such order for the safe custody of such person so found 
1 insane during her pleasure, in such place and in such manner as to her 
1 Majesty shall seem fit/ 



332 CA8E3 BEFORE THE HIGH COURT 

Atouniter ***** *** e y ^^ *** e power to do bo. If they did not aee 
Milne, cause to exercise it, the trial would of course go on to 
HighCourt- its natural conclusion. 

Feb. 9, 10, . . 

• 11,1863. The Lord Advocate said it was, however, for the 
Murder, jury to consider whether, before they had heard the 
whole evidence, it was desirable they should interpose. 
The Lord Justice-Clerk said he was only stating 
what the Act enabled the jury to do. 

Dr. James Simson, Surgeon of Prison of Edinburgh. — On the 9th 
January I was desired by the Procurator- Fiscal to go with Professor 
Christison and any other medical gentleman well acquainted with 
mental disease to visit the prisoner. The object was to ascertain the 
state of his mind. I had seen him on the morning before at 11. I 
went with Christison and Smith at 3.30 p.m. I again went with Smith 
on the 11th or 12th, and with Christison on the 13th. On the morning 
of the 9 th panel's pulse was small and quickish, tongue loaded. He was 
not under delirium tremens. His eyes had a dreamy, heavy appearance. 
He complained of pain in the fore part of the head. On the 9th when I 
visited with Christison and Smith I asked him what he had been doing 
on Christmas Day, and 1 got a description of all his proceedings down 
to his being lodged in prison. He said that on Friday the 26th Pater- 
son gave him a poisoned cigar. On Saturday the 27th Paterson pro- 
duced vapour which confused and blinded panel — vapour produced from 
substance taken out of Paterson's pocket, from which he blew out vapour. 
He told me of an attempt to rob his shop on January 5th. He knew 
there was to be a robbery, for he had seen on a paper on his own wall, 
* robbery to-night/ On the 29th he saw through the vapour Paterson 
and his wife on the sofa, and that the vapour prevented him from 
rising. He said he sent for Dr. Sidey on the 5th, who ordered 
camphor mixture. That Paterson came in, took cork out of the bottle, 
he suspected he had put something into it, and sent for another bottle. 
1 did not think panel was feigning insanity. 1 have had various in- 
terviews with him, which confirms this impression, I tried to carry 
him further with his stories, but he stuck consistently to one story. 
His health has improved in prison. If he was not feigning he was 
labouring under delusions, and therefore is insane. He varies a good 
deal, and is better and worse in his mental health. Last Friday and 
Saturday he was not so well in mental health. 

Cross-examined for the Prosecution.— There was nothing wrong 
with his mental health except the presence of delusions. He began to 
doubt sometimes in beginning of last week whether his delusion was a 
fact. He had been reading " M'Nish's Anatomy of Drunkenness," 
and he found stories of such delusions proceeding from drink which 
made him doubt about his own. His first delusion was the poisoning 



AND CIRCUIT COURTS OF JUSTICIARY. 333 

with cigar. (2.) Vapours. (3.) The poisoning his drink by Paterson. n . 61 . 
(4.) He said on Christmas night he heard Paterson, and Kilgour, and Alexander 

Moodie, making a conspiracy to break into his shop. (5.) Paterson's — . L- 

designs on his wife by the use of a vapour which alienated her affec- ^ 9 "fo 
tions from him and fixed them on Paterson. He told us all these 11,1863. 
things on the 9th. We did not find any connection between any of the Murder, 
delusions and the act of murder. He said the act was accidental 
merely. He never varied from that. I have never traced any con- 
nection between the murder and any delusion in his mind. I never 
knew or heard of a case in which homicide committed under an insane 
delusion was first admitted and then denied by the lunatic. A mono- 
maniac does not attribute to accident what he has done under delusion. 

To the Court. — I never saw symptoms of delirium tremens in panel. 
The facts spoken to by the warder, M'Kay, were not like symptoms 
of delirium tremens. The events of the night of 9th January may be 
explained either as the result of a dream, or as the exhibition 
of one of his delusions. These facts were reported me the day after. 
I saw him that morning ; he was a little sleepy, as if he had not slept 
well, that was the only difference from the day before. I did not think 
what he suffered on night of 9 th was caused by withdrawal of stimu- 
lants to which he had been accustomed. My opinion is, that delirium 
tremens is not produced by withdrawal of stimulants, but by the ante- 
cedent poison of alcohol. Q. What is your opinion of his present 
mental condition ? A. He is insane still in respect of these delusions. 
He is now as insane as during any time he has been under my charge. 

Db. John Smith, Visiting Physician of Saughton Lunatic Asylum. — 
I visited the panel with Simson and Christison on 9th, 12th, and 13th 
January to discover his present state of mind. My opinion was that 
he was under certain impressions which I believed to be delusions, and 
which would on investigation be proved to be delusions. I have no 
doubt he believed what he said to be true. My impression was that 
he was not feigning. I thought this from the readiness and simplicity 
with which he answered questions, and from his being calm and com- 
posed throughout. My opinion is that he is insane, and from the 
evidence I have heard my impression is that the state of his mind was 
unsound at the date of the act of homicide charged. My impression 
has been the same throughout He is a man of fair intelligence. 
I found nothing wrong with him except the delusions. I tried to 
reason with him about the conspiracy to rob his shop, the poisoning of 
his drink, and his wife's infidelity. I asked him about the murder of 
Paterson. I found that act to be connected with the delusion of 
the conspiracy, and the delusion of the poisoning. I thought the act 
of homicide was committed to get rid of the conspirator, the poisoner, 
and the seducer of his wife. I formed this opinion from what came out 
in the whole course of the conversation. He gave me by his conver- 



334 CASKS BEFORE THE IIICH COURT 

No. 61. sation to understand that he committed the act of homicide to get rid 

Milne. °^ *^e P 61 " 8011 who had so injured him. He said it was an accident. 

Hi hCo rt * tnou £ n t tnat * n saying that he was saying what be did not believe 

Feb. 9, 10, to be true. He never said anything about the act of homicide except 

U, 1863. fl^ j fc wa8 an accident He might murder the man under the influence 

Murder, of an insane delusion and afterwards say it was an accident. I am 

not acquainted with any case of murder in which that occurred. I 

have known an act done by a monomaniac under the influence of his 

delusion, and then denied by him. A monomaniac may, immediately 

after an act committed under the delusion, feel contrition, and try to 

extenuate the act. He expressed doubts as to whether Paterson was 

dead. He said he saw the dead body, but it was so like life he did 

not think he was really dead. I don't think he believed that. I 

think he was trying to impose on us in saying that. I also thought he 

was trying to impose on us when he gave a long account of how it had 

occurred by accident. He appeared in bad health from drinking. 

Re-examined — His intentionally telling a lie in his declaration does 
not exclude the idea that on the previous day he was of unsound mind. 
Question, Is it not a possible condition of the mind in monomania 
that the patient might be well aware of the nature of the crime, and 
that he would suffer for it, and yet might feel irresistibly impelled to 
commit the crime ? 

The Lord Justice-Clerk. — If all the physicians in 
Europe were to state that, I would tell the jury that 
they must not believe it, or act on it. 

Witness answered the question in the negative. 

To the Court. — The panel was as much insane the last day I saw 
him as the first. 

Robert Christison, M.D. — Panel was perfectly intelligent on all 
points except as to certain impressions he stated he entertained for 
some days before the act for which he is now here. They appeared 
to me to be delusions, but which at the same time it would require the 
evidence of others to prove to my satisfaction that they were delusions. 
I should require to be satisfied whether the things he said he believed 
had really taken place or not, and also whether he had spoken of them 
previous to the act. He seemed to believe that these occurrences took 
place. If these were delusions, he was insane when he was under them. 
He was not under the influence of his delusions when I saw him. He 
only recalled them as impressions formerly existing. I did not observe 
any indication of feigning insanity while under examination. He had 
the general dreamy expression of persons describing such delusions — 
a peculiar expression which persons have, even when sane, at the time 
when they recall and recount such delusions. Persons afflicted with 
delusions are sometimes intelligent enough to plan things to get off 



AND CIRCUIT COURTS OF JUSTICIARY. 335 

from punishment. I cannot say that the panel appears to have been No. 61. 
labouring under an alienation of reason at the time so that he was Milne, 
doing no wrong. HighCourt. 

To the Court. — When I saw panel I think he then believed that Feb. 9, 10, 
Paterson had produced the vapour. He did not think he was then n > 1863 - 
subjected to such practices, there was therefore no present delusion of Murder, 
the senses. But his recollection and belief of the former supposed oc- 
currences was an existing delusion of the understanding. It is a 
favourable state towards recovery where the delusions don't recur, but 
it is not a recovery till the patient comes to disbelieve what he formerly 
believed. In feigned insanity it is much easier to feign a past de- 
lirium than a presently existing one. There is no appearance of 
delirium tremens in the case. 

This closed the evidence for the defence, and the 
Court then adjourned till the day following. 

The Solicitor-General addressed the jury for the 
Crown. He said there were four, or rather five ques- 
tions for the consideration of the jury. The first was, 
was the deceased James Paterson killed on the occasion 
libelled by being stabbed with a dagger? On that 
point he thought the evidence too clear and conclusive 
to call for any observation. The second question was 
equally clear with the first — namely, was the prisoner 
the person who so killed him, and was the wound in- 
flicted by the prisoner intentionally, and not by acci- 
dent ? He put intentionally as opposed to accident, as 
apart from the question whether the stab was inflicted 
for the purpose of killing him, or of merely giving him 
a touch. The third question was perhaps deserving of 
more consideration — was the deed done under such 
circumstances as to amount to murder, or was it an of- 
fence of a lower description ? and he expressed this 
question apart altogether from the defence of insanity, 
which must be separately considered. The fourth ques- 
tion, and the most important in the case, was this — was 
the prisoner insane at the time he committed the act ? 
There was a fifth question, which in its own nature was 
really the first in the case, for an answer to it in one 
way would supersede the necessity of answering all the 
others— namely, was the prisoner insane now ? The 



336 CASES BEFORE THE HIGH COURT 

No. 01. cage which his counsel had made for him — and he could 

Alexander 

Milne, not doubt their judgment — after anxious consideration 

^fb.^ioj an( * * n( l u * i y> was ^ at h e k insane now. If he is insane 
n » 1863 - now, he is in no position to defend himself from the 
Murder, charge of murder ; he is in no position to be tried for 
murder : and he neither could be condemned nor ac- 
quitted as in a trial for any offence. Accordingly, by 
a clause in a recent statute, to which his Lordship called 
attention yesterday, it was enacted that if, in the trial 
of a man for any crime or offence, the jury shall be 
satisfied he is insane at the time of trial, they may find 
to that effect, and certain precautionary measures shall 
be taken by the Court for having him detained and 
confined as an insane person. The difference between 
that and insanity as a defence against the charge con- 
sisted in this, that if the prisoner be insane now he can- 
not be tried. But if, on the other hand, assuming him 
to be sane now, you find he was deprived of his reason 
at the time the act was committed, he must on that 
ground be now acquitted. Now the case presented to 
them was this, that the prisoner was not only insane 
then^ but insane now. These being the five questions 
they had to consider, he should make a few remarks 
on those points to which their attention must be prin- 
cipally directed. The first two questions called for no 
remark. He would only remind the jury that the no- 
tion of an accident was an after- thought. On his appre- 
hension, the prisoner admitted that he had done it in- 
tentionally, stating that he could contain himself no 
longer, although in inflicting the stab he intended only 
to give him a touch, and not to kill him. The notion 
of an accident was not expressed till next morning ; and 
when they looked into it, they would see it was an im- 
possibility, because the wound in the breast of the de- 
ceased pointed upwards, and the position of it was above 
the level of the post of the stair at which the prisoner 
said he was lounging when the accident occurred. But 
the third question, as he had said, required very care- 



AND CIRCUIT COURTS OP JUSTICIARY. 337 

ful consideration — namely, did the act amount to the No. $u 

• # Alexander 

crime of murder ? They were aware of the distinction Milne. 
between murder and culpable homicide, and it might be ^J^f 
sufficient for his purpose to say that unless the deadly n, ism- 
wound was inflicted under circumstances which called Murder. 
for it in self-defence, or under circumstances of such ex- 
treme provocation that the law and their humanity 
would make allowance for the infirmity of human 
nature, it must be considered as murder. As to the 
fourth and fifth questions, the Solicitor-General adduced 
the authority of Baron Hume, vol. i. p. 37, to the effect 
that to serve the purpose of a defence in law, the disor- 
der must amount to an absolute alienation of reason, 
and that it was not enough to say that the prisoner 
was a man of strange, moody, sulky humour, or a man 
of capricious, irritable, and passionate temper. He 
thought the jury would agree with him in saying that 
the prisoner was not at the time, nor was he now, 
either an idiot or a furious madman. He was not even 
a man of weak intellect. He was according to all the evi- 
dence they had on the subject, a man of ordinary average 
intelligence. But he thought it did appear that he was 
a man of strange, moody, sulky humour, and that he 
was a man of strange irritable, passionate temper, but 
with reason sufficient to guide him, sufficient to enable 
him to exercise the power of self-control, if he chose to 
do so. It appeared that for about three years he had 
been leading a very intemperate and dissipated life, 
giving himself up to hard drinking, and thereby at once 
inflaming his passions and aggravating his temper, 
at once disturbing his judgment and diminishing his 
power of self-control — diminishing his power to resist 
the promptings of his passions and his temper. They 
had the picture of a man naturally of a capricious, irrit- 
able, passionate temper aggravating his position by 
intemperate habits, and by such habits at the same 
time diminishing his power to restrain his actions. 
On a review of the whole evidence, the Solicitor-General 
vol. rv. Y 



338 CASES BEFORE THE HIGH COURT 

Ateitnder conc l u( *ed ky telling the jury that he felt compelled to 
Milne, call on them to affirm that Paterson was stabbed by 

High court, the prisoner wilfully, and not by accident ; that the 
n,'t863. ' prisoner was not insane now or at the time, but was 

Murder, fully responsible for the consequences; and that the 
consequences were those which attached to the crime 
of murder. 

Scott, for the panel, addressed the Jury — With refe- 
rence to the statements made by the panel to Lieuten- 
ant Cowan, he said, As to the declaration that was 
made before the magistrate, we found him in the Police 
Office subjected to a long examination by Lieutenant 
Cowan and Dr. Littlejohn, after being warned in the 
usual way. The questions were put to him, and were 
all registered in the mind of Lieutenant Cowan. Next 
day he was taken before a magistrate, and his written 
declaration emitted. He (Mr. Scott) would put it to 
his Lordship whether this statement was part of the 
evidence at all. They had got this declaration, taken 
on Wednesday, committed to the slippery memory of a 
police lieutenant. Then, next day the prisoner was 
subjected to an examination and a second declaration 
emitted. That was the legal examination, and lieuten- 
ant Cowan had no right to make an examination, 
or to give any warning to the man. But since he had 
made it, the authorities had no right to make a second 
examination. He maintained that there could be no 
question that at the time this deed was committed the 
man was labouring under insane delusions, and was in- 
sane ; and there was no evidence to attribute it to 
nightmare, dreams, or anything else. With regard to 
the question whether Milne stabbed Paterson intention- 
ally, and whether at the time his mind was in such a 
condition that he knew right from wrong, counsel 
contended that Milne was at the time labouring under 
an aberration of intellect, which rendered him irresponsi- 
ble for his actions. He also maintained that there was 
no evidence to show that the prisoner had been drinking 



AND CIRCUIT COURTS OP JUSTICIARY. 339 

to excess before the fatal deed was committed, and craved No. 61 . 
the acquittal of the panel on the ground of insanity. Mitoe. 

The Lord Justice-Clerk charged the jury, he said — HighCom* 
The case which you have to dispose of is undoubtedly n,*i863.' 
one of great importance and of great delicacy, and I Murd.r. 
think it must be matter of satisfaction to you, as it is to 
the Court, that the defence of the prisoner has been 
conducted throughout with so much ability, modera- 
tion, and good judgment. The case is now left for you 
and me to dispose of. It has received, I think, all the 
light that it could receive from either side of the bar ; 
but we cannot disguise from ourselves that we have 
a very responsible duty still to discharge, and that must 
be my apology for detaining you, even upon this the 
third day of the trial, with rather a lengthened exposi- 
tion of the evidence. But before I enter upon that, I 
wish you distinctly to understand what are the various 
questions that you have to consider and to dispose of. 
The charge in the indictment is that, upon the 7th 
January last, the prisoner, within his own shop, as- 
saulted the now deceased James Paterson, and stabbed 
him with a dagger or poignard, in consequence of which 
he was mortally wounded and immediately thereafter 
died, and was thus murdered by the prisoner. Now, in 
ordinary circumstances, under that indictment, you 
might return four different verdicts. You might find 
the prisoner guilty of murder ; you might find him 
guilty of culpable homicide, if you did not think the 
case came up to murder ; you might find him not 
guilty ; or you might find the libel not proven. All 
that is plain enough, and the only point on which it is 
necessary to say a word in passing, as regards that as- 
pect of the case, is, that the difference between murder 
and culpable homicide, is a matter of which it is pecu- 
liarly the duty of the jury to judge, and depends entirely 
upon the circumstances under which the deceased was 
slain. But there is superadded, in the present case, ano- 
ther and a much more perplexing element, which arises 



840 CASES BEFORE THE HIGH COURT 

Atexa^der ** om *k e special defence lodged on behalf of the prisoner. 

Miine. Besides his general plea of not guilty, he pleads that at 

High court the time when the act is said to have been committed! 

1 Vises.' he was insane, and acting under the influence of insane 

Murder, delusions. 

The first question then is one of pure fact— whether 
the deceased died from a stab inflicted with a dagger, 
and about that I need not waste any time, for it is cer- 
tain from the evidence that that is the case. The second 
question to be considered is, whether that stab was in- 
flicted by the hand of the prisoner, and upon that point 
— apart altogether from the question of insanity— there 
can be just as little doubt, because the prisoner has ad* 
mitted that the stab was inflicted by his hand. Whe- 
ther these admissions can be used in evidence against 
him will depend upon whether he was sane or insane 
when he made them ; but if he was sane when he made 
them, then these admissions, coupled with the other 
evidence in the case, make it abundantly clear that his 
was the hand that inflicted the fatal blow. It may be, 
however, that although his was the hand that inflicted 
the fatal blow it was done by accident ; and of that ques- 
tion you will have to judge. That is one of the statements 
which the prisoner himself has made— that it was the 
result of a mere accident ; but if you are satisfied that 
it was not the result of an accident, then you will have 
to inquire — supposing the prisoner was sane when he 
committed the act — whether the act was in its character 
such as to make it in law murder, or only culpable ho- 
micide. Now, in regard to that latter question, it is 
only necessary for me to observe, in the meantime, that 
there is one peculiarity in this case, which is not per- 
haps of very unfrequent occurrence, but which is still 
of great importance, that the particular manner and cir- 
cumstances in which the blow was inflicted cannot, and 
have not, been directly proved — because no one was pre- 
sent to see the blow inflicted. Therefore the amount of 
malice or dole on the part of the prisoner which is ne- 



AND CIRCUIT COURTS OF JUSTICIARY. 341 

cessary to constitute the crime of murder is to be in- No - 61 < 
ferred only from circumstances, and from the conduct Miine. 
of the prisoner previous and subsequent to the moment **!«£ ^wC. 
at which the blow was inflicted. But all these oonsi- n/ieee/ 
derations that I am now presenting to you are subor- Murder. 
dinate to one other great question which you have 
got to try — viz., the condition of the prisoners mind 
at the time when this act is said to have been com- 
mitted. If he was insane at the time, he is not crimi- 
nally responsible, and cannot be convicted under this 
indictment. If that insanity has passed away since 
the crime was committed, and the prisoner is now in 
a condition to be tried for this offence, and in a con- 
dition, it may be, to be restored to society as a sane 
man, then of course your duty under this indict- 
ment is to acquit him in respect of his being insane 
at the time that the act was committed. But if, on 
the other hand, you are satisfied that he was insane at 
the time that the act was committed, and that his in- 
sanity still continues, your duty is a different one. 
You cannot then, either convict or acquit him ; you 
must simply find that he is insane, and the Court will 
then give such directions for his disposal as the law pre- 
scribes. 

With reference to the examination of the panel by 
the Lieutenant of Police, the Lord Justice-Clerk said — 
It has been contended by the prisoner's counsel that 
the examination of the prisoner in the Police Office 
was an improper proceeding, and that the statement 
which the prisoner made on that occasion ought not 
properly to have been received in evidence. Now, the 
duty of police-officers, when they apprehend a person 
upon a criminal charge, is to carry him as soon as 
possible before a Magistrate, in order that he may there 
have an opportunity of making a declaration, and 
of giving answers to any questions that may be put 
to him ; and it is certainly not a proper course for 
police-officers to anticipate that examination before a 



342 CASES BEFORE THE HIGH COURT 

Me' nder ma g"* ra ' e an( ^ enter upon an examination of the pri- 
Miine. soner themselves. About that the Court never have 
^8h Court. en tertained any doubt. But this is a very peculiar 
11, 1863. ' case ; and the evidence of what took place when the 
Murder, prisoner was first brought to the police office was al- 
lowed to be taken in this case, and laid before you not 
properly as part of the evidence of the prisoner having 
committed the act charged against him, but as evidence 
bearing upon his special defence of insanity ; and if it 
had not been for that special defence of insanity the 
evidence would not have been led. Further, I feel per- 
suaded that neither the Lieutenant of Police nor Dr. 
Littlejohn would ever have dreamt of entering upon 
that course of conversation or examination, whatever 
it may be called, that has been laid before you, if 
the case had been an ordinary one. But they had both 
been made aware that the prisoner was in a strange 
state, and it was suspected that there might be some- 
thing wrong, and therefore they encouraged and led 
him to make these statements in the peculiar circum- 
stances in which he was brought to the office. I 
cannot say that they acted inconsistently with their 
duty in doing so ; on the contrary, 1 feel bound to say 
that for the interest of the prisoner himself, it is very 
fortunate that they did pursue that course ; and, there- 
fore, I think that this evidence is not only legitimately be- 
fore you, but I think that these gentlemen, who are very 
well acquainted with their duty, did not by any means 
transgress the bounds of their duty upon that occasion. 
As to the declaration taken before the Magistrate, 
the learned Judge remarked — Now, with respect to 
this declaration, of course a declaration made by a 
man who was insane at the time cannot be made evi- 
dence against him ; but then, if the man was insane 
we need not go any further, but the question is, 
whether the declaration is not a valuable piece of evi- 
dence in this case, in which the first and principal issue 
which you have to answer is as to the sanity or insanity 



AND CIRCUIT COURTS OP JUSTICIARY. 343 

of the prisoner. Now, to that extent and effect, un- No. 6i. 
doubtedly the declaration is admissible ; and I would m£? r 
propose that you should deal with it for no other purpose. High Court. 
Reverting to the question as to the state of the panel's n^^/ 
mind, the Lord Justice-Clerk said — The doctrine of Murder. 
criminal responsibility is exceedingly simple. If a 
person knows what he is doing — that is to say, if 
he knows the act that he is committing, if he knows 
also the true nature and quality of the act, and appre- 
hends and appreciates its consequences and effects — that 
man is responsible for what he does. If, from the 
operation of mental disease, he does not know what he 
is doing, or if, although he knows what is the act that 
he is performing, he cannot appreciate or understand 
either its nature or its quality, its consequences or its 
effects, then he is not responsible. Mr. Scott was, I 
think, quite right when he said that if you are once satis- 
fied that this man was under the influence of insane de- 
lusions at the time this act was committed, you have no 
occasion to inquire farther, whether he knew what was 
right from what was wrong, or whether he knew what 
was murder in the eye of the law, or what was a punish- 
able act ; because if he was in point of fact at the time 
under the influence of insane delusions, the law at once 
presumes from that that he cannot appreciate what he 
is doing. But, gentlemen, you must be quite satisfied 
that the person is in a condition of mental disorder or 
disease before you can either find that he is insane, or 
acquit him on the ground of insanity, at the time the 
act was done. It is not sufficient to say that the man 
is in an anomalous state of mind from extrinsic causes 
— from drinking, or anything else — which makes the 
bad part of his nature predominate over the better, and 
which gets the better of the influence of conscience — or 
that he is in such a state of moral depravity that his 
conduct and his feelings are, it may be, not worthy of 
a human being. That is not insanity. Moral depra- 
vity, or weakness of mind combined with or caused by 



344 CASES BEFORE THE HIGH COURT 

iulradar mora ^ depravity, is not insanity. But if the mind is 
Mfow- diseased — that is to say, if the understanding is im- 

^ ig b ^"u* P*"* 6 ^ *° *^ e extent I have already explained — then that 

l if lab.' is insanity, which will take away criminal responsibility. 

Murder. If there be such insanity, it matters not, as Mr. Scott 
also very properly stated to you, what was the excit- 
ing cause of that insanity. It may be drunkenness — 
or it may be indulgence in any other vicious pro- 
pensity — it is of no consequence which it is, if insanity 
is actually produced and is present at the time. The 
question, therefore, which you are to solve is, in the 
first place, whether at the time this act was committed 
this man was insane, and in connection with that you 
must also direct your attention farther to this question, 
whether that insanity still continues ; because, accord- 
ing to the conclusion you shall come to upon these two 
questions, the form of your verdict must depend. If 
you should be of opinion that this man was insane at 
the time he committed the act charged against him in 
this indictment, but has since recovered from his insa- 
nity, and is sane now, your verdict would be a verdict 
of acquittal on the ground of insanity ; but if you are 
satisfied that the man was insane at the time he com- 
mitted the act, and still continues so, or if you are satis- 
fied that he is insane now, whether he was insane at the 
time or not, then your verdict must be a verdict of 
present insanity. If you should come to the latter con- 
clusion you will be kind enough to announce to the Court 
that you are of opinion that he is now insane, and the 
Court will then put your finding into the form the statute 
requires. But, on the other hand, if you should not be 
satisfied upon the whole evidence that this man is in- 
sane now, or was insane at the time when he committed 
this act, you will then direct your attention to the 
evidence of the fact itself, and pronounce your ver- 
dict of guilty or not guilty as regards this murder 
charged against him, keeping in view also, of course, 
that it is in your power in giving your verdict of guilty, 



AND CIRCUIT COURTS OF JUSTICIARY. 845 

to characterise the act as either murder, or culpable A £**?V 
homicide. Now, in going back to this aspect of the case, Miine. 
I must remind you once more how the case stands on the High court. 

* Pah 9 10 

evidence. The prisoner undoubtedly sent for Paterson u/ises.' 
on the morning of the 7th ; and undoubtedly also on the Murder. 
morning of the 7th he bought a dagger — rather a sin- 
gular weapon — very soon before Paterson came to him, 
whether after he had sent for him, or before he had sent 
for him you will say, according as you think the evi- 
dence preponderates the one way or the other. Pater- 
son comes on his invitation, and almost immediately on 
entering the shop he is stabbed to the heart, rushes out 
of the house with the fatal wound upon him, and almost 
immediately thereafter dies. The prisoner from the first 
does not seek to disguise that the stab was his act. 
Assuming his sanity, you must take that as evidence 
against him on his own admission. But you will also 
consider — still upon the assumption of his sanity — 
whether the account he afterwards gave is or is not 
evidence of his guilt af this murder. What the motive 
of the murder was, upon the assumption of his sanity 
— upon the view that all these delusions were really not 
delusions affecting his mind — what the motive of the 
murder was in that view, you do not know. To say 
that murder can never be committed without motive is 
very true in one sense. No act almost can be com- 
mitted without a motive. But there is many a murder 
committed without apparent or proved motive. The 
motive may remain a mystery, while the murder is an 
accomplished fact. The peculiarity of the case, how- 
ever, viewed as a case without the element of insanity 
at all, is undoubtedly this, that the guilt of the prisoner 
depends a good deal upon the evidence furnished by his 
own statement — not entirely, of course — it would be 
most unsatisfactory and uncomfortable if it depended 
entirely upon evidence furnished by himself — but the 
circumstances otherwise proved afford very strong evi- 
dence indeed, so much so as to render it almost cer- 



346 CASES BEFORE THE HIGH COURT 

jJmumder ta * n ' a P ar *' fr° m ^ admission, that his was the hand 
Miine. that inflicted the blow. But it is only from a con- 
^^"^•sideration of these circumstances, coupled with the 
n > 1863 « statement of the prisoner, that you can arrive at any 
Murder, solution of the question whether that blow was in- 
flicted with murderous intent, or whether it was in- 
flicted in such circumstances as to infer the guilt of cul- 
pable homicide only, or lastly, under such circumstan- 
ces as to enable you to say that it was the result of ac- 
cident. Now, here the leading and most important fact 
is, that nobody saw or knew what passed between these 
two persons, the prisoner and the deceased at the time 
the blows were inflicted — all we know is this, that they 
seem to have been inflicted almost immediately upon 
Paterson coming to the house — that they were fatal, 
and inflicted on such a part of the body as, if it was not 
an accident, indicates on the part of him who did it a 
very deadly purpose. On the other hand, it is possible 
that things may have occurred between them when no 
one was present but themselves, that might tend to 
diminish, in some degree at least, the malice which is 
necessarily implied in the crime of murder. If you feel 
so much doubt about the circumstances, supposing you 
to be now satisfied that the man was sane, and satisfied 
that the blow was certainly wilfully inflicted — if you 
feel so much doubt about the circumstances in which 
the blow was inflicted as to hesitate whether it was a 
murder — you know the alternative. You have to find 
a verdict of culpable homicide. 

The jury found the prisoner guilty by a majority, but 
recommended him to the mercy of the Court. 1 
Sentence, death.* 

1 In answer to a question by the Court, the Chancellor of the Jury 
explained that this recommendation has proceeded on the ground of 
divided opinion on the part of the Jury. 

s This sentence was afterwards commuted to penal servitude for life* 



Mar. 2. 

1863. 



AND CIRCUIT COURTS OF JUSTICIARY. 347 

Present, 

The Lord Justice-Clerk, 

Lords Deas and Ardiollan. 

Her Majesty's Advocate — Qifford A.D. — A. Moncrieff A.D. 

against 

Henry Habdinge and Lucinda Edgar or Hardinge — 
Badenack-Nicolson. 

Theft — Falsehood, Fraud, and Wilful Imposition — (1.) A panel 
was charged with falsehood, fraud, and wilful imposition, in so far 
as he made certain representations, and did, ' by means of these or 
4 other similar or false representations, deceive and impose upon/ 
certain persons. The minor proposition was objected to, and the 
Court ordered the word * or' to be deleted from the libel. 

(2.) A panel is guilty of theft, who, by means of false pretences, ob- 
tains possession of and appropriates the property of another in the 
custody of a third person. 

(3.) Circumstances in which, under an indictment charging falsehood, 
fraud, and wilful imposition, or theft, the public prosecutor asked a 
verdict on the oharge of theft only, the mode of imposition proved 
being different from that alleged. 

Henry Hardinge and Lucinda Edgar or Hardinge, No 62 
his wife, were charged with HwSn 7 

Falsehood, fraud, and wilful imposition ; as also theft, especially High Court, 
when committed by a person who has previously been convicted of ™6Z* 
theft, are crimes of an heinous nature, and severely punishable : Yet jviisehooF 
true it is and of verity, that you, the said Henry Hardinge and Ac. or 
Lucinda Edgar or Hardinge, are, both and each or one or other of you, 
guilty of the said crime of falsehood, fraud, and wilful imposition, or of 
the said crime of theft, aggravated as aforesaid, actors or actor, or art 
and part : In so far as, on the 27th day of October 1862, or on one or 
other of the days of that month, or of September immediately preced- 
ing, or of November immediately following, in or near the station at 
the terminus of the North British Railway Company, at or near 
Waverley Bridge, Edinburgh, or at or near Canal Street, Edinburgh, 
you, the said Henry Hardinge and Lucinda Edgar or Hardinge did, 
both and each or one or other of you, wickedly and feloniously, falsely,' 



348 CASES BEFORE THE HIGH COURT 

No. $2. fraudulently, and wilfully represent and pretend to David Anderson, 
H&rdimre t * ien turf now or lately porter in the employment of the said North 

High Court British Railway Company, that you, the said Henry Hardinge and 

Mar. 2. Lucinda Edgar or Hardinge, both and each or one or other of you, had 

1863 ' been sent by Thomas Gagie, now or lately horse-dealer, and residing 

F &r h or° d ^ th John Ainslie > platelayer, in or near Canal Street, Edinburgh, for 
Theft, a chest and hamper, which had been deposited with, or left in the 
custody and charge o£ the said North British Railway Company by 
the said Thomas Gagie, the luggage ticket or receipt for which you, 
the said Henry Hardinge and Lucinda Edgar or Hardinge, both and 
each or one or other of you, falsely, fraudulently, and wilfully repre- 
sented and pretended to the said David Anderson had been destroyed 
or lost by the said Thomas Gagie ; and you the said Henry Hardinge 
and Lucinda Edgar or Hardinge, did, both and each or one or other of 
you, by means of these or other similar [or] false representations and 
pretences, deceive and impose upon the said David Anderson, and 
did induce him, time and place above libelled, to deliver to you, the 
said Henry Hardinge and Lucinda Edgar or Hardinge, or one or other 
of you, a chest, &c^ the property of the said Thomas Gagie, or of 
Prudence Edgar or Gagie, wife o£ and now or lately residing with, the 
said Thomas Gagie, and in the lawful possession of the said North Bri- 
tish Railway Company ; as also a hamper, &c., the property of the 
said Thomas Gagie, 9 and in the lawful possession of the said North 
British Railway Company, which you, the said Henry Hardinge and 
Lucinda Edgar or Hardinge, both and each or one or other of you, 
then and there received, and appropriated to your own uses and pur- 
poses: Or otherwise, time and place above libelled, you the said 
Henry Hardinge, and Lucinda Edgar or Hardinge, both and each or 
one or other of you, did, wickedly and feloniously, steal and theft- 
uously away take a chest, &c., the property of the said Thomas 
Gagie, or of the said Prudence Edgar or Gagie, and in the lawful pos- 
session of the said North British Railway Company; as also a 
hamper, &c., the property of the said Thomas Gagie, and in the 
lawful possession of the said North British Railway Company. 

Badenach-Nicolson, for the panels contended — That 
the prosecutor had taken too great a latitude in the 
minor proposition applicable to the charge of falsehood, 
fraud, and wilful imposition, in respect that, after speci- 
fying the alleged false representations, the indictment 
continued, ' did, both and each or one or other of you, 
' by means of these or other similar [or] false represents 
' tions and pretences, deceive and impose upon the said 
' David Anderson/ &c. If such latitude were allowed, 



AND CIRCUIT COURTS OF JUSTICIARY. 849 

the prosecutor might have false representations entirely No. 6*. 
different from those specified, and still insist for a ver- Hardinge. 
diet against the panels. High court 

The Court was of opinion that the latitude taken by jsea.' 
the prosecutor was too great, and ordered the word Falsehood, 
' or' (printed in italics in the last quotation,) to be i£ea 
struck out. 

The case then went to trial, when it was proved that 
Gagie had originally deposited five packages with the 
railway company ; that his wife had soon after got up 
all the packages, except the chest and the hamper with 
their contents specified in the indictment ; that a con- 
siderable time afterwards the panels went to Anderson 
the porter in charge of the left luggage room, and said 
to him, 'We have come for the rest of our luggage ;' 
that Anderson asked for the ticket or receipt which had 
been given for the luggage, when the female prisoner 
said, her husband, indicating the male prisoner, had 
' lighted his pipe with it ;' that the female prisoner 
signed the counterfoil in the possession of the railway 
company, with the words, € Mrs. Gagie ;' and that An- 
derson, then believing the prisoners to be Mr. and Mrs. 
Gagie, delivered up the chest and hamper to them, 
which they carried off and appropriated. 

Gifford, for the prosecution — maintained to the jury 
that they should return a verdict of € Guilty' on the 
charge of theft. 

Nicoi£ON, for the panels contended — (1.) That the 
jury could not convict upon the charge of falsehood, 
fraud, and wilful imposition, because the false represen- 
tations which had been proved to have been made were 
entirely different from those set out in the indictment. 
(2.) The facts which had been proved did not constitute 
the crime of theft ; and the jury could not convict on 
that charge — Hume, (i. 57,) laid it down, that the dis- 
tinction between swindling (by which he meant false- 
hood, fraud, and wilful imposition) and theft consisted 
in this, that in the latter crime the goods were taken 



350 CASES BEFORE THE HIGH COURT 

No. 62. < without the consent of the owner.' while, in the former. 

Henry . 

H&rdinge. they were taken with his consent, although that consent 
HwhCourt. had been obtained by false representations. The dis- 
1863.' tinction was a material one, and ought not to be broken 
Falsehood, down. In recent times it had been recognised in the case 
Theft, of Samuel Michael, High Court, December 26, 1842, 
Broun, vol i. p. 472 ; and indeed the structure of the pre- 
sent indictment, which charged first the one crime and 
then the other, showed that the prosecutor himself ad- 
mitted that the crimes were different, and that the one 
could not be included within the other. On that view 
of the law, it was impossible to say that the facts proved 
constituted the crime of theft. The goods in question 
had been given up by the lawful custodier (who repre- 
sented the owner) quite voluntarily, although, no doubt, 
he was induced to part with them in consequence of a 
mistaken belief induced by the false representation of 
panels. 

The Lord Justice-Clerk, in charging the jury, said- 
It was quite necessary to consider the effect of the 
panels being charged, first, with the crime of swindling, 
and, second, with that of theft. It might be that the 
facts proved amounted to a case of swindling ; but it did 
not follow that they might not also constitute the crime 
of theft. In regard to the observations which had been 
made by the counsel for the prisoners on the discrepan- 
cies between the facts applicable to the charge of 
swindling, as stated on the indictment, and the facts 
as established in evidence, the Court would not say 
that they were fatal so as to preclude the jury from 
returning a verdict of guilty on the first charge ; 
but there was, at all events, sufficient doubt on that 
point to make it proper that the jury should direct their 
attention to the charge of theft only, in regard to which 
there was no difficulty in point of law. If a man went 
to a person in possession of the property of another, and 
by any false pretext whatever obtained it from the 
custodier, carried it off, and appropriated it to his own 



AND CIRCUIT COURTS OF JUSTICIARY. 351 

purposes, that was theft. The jury would consider the ^£* # 
facts, as bearing on the second charge in that view of HardSp 8 e ' 
the law, and return a verdict in accordance with their H gJ^ rt ' 
judgment on the facts. **m- 

The jury found the panels 'guilty of theft' as libelled, F ^*f h ^ d ' 
but recommended them to the leniency of the Court. Theft. 
In respect whereof, they were sentenced to be imprisoned 
for eighteen calendar months. 



Mar. 9. 
Present, l»». 

The Lord Justice-Clerk, 

Lord Neaveb and Jeryibwoode. 

Charles M'Lean, Suspender — A. R. Clark, 

AGAINST 

Henry Macfarlane, Respondent-— Qiffbrd. 

Suspension — Oppression — Justice of Peace Conviction — Master 
and Servant — Statute 4th Geo. IV. c. 34 — Procedure — Rele- 
vancy. — In a suspension of a conviction of a workman for deserting 
his master's service, in contravention of the Statute 4th Geo. IV. c. 
34, on the ground of oppression, inasmuch as no time had been af- 
forded to the suspender to lead proof or obtain the assistance of a 
law-agent, the Court refused an application for suspension on the 
ground that it was not sufficiently averred by the suspender that 
delay had been asked and refused, although at the bar that aver- 
ment was made and proof of it was offered. 

This suspension was brought of a conviction by a Jf^??' 
Justice of the Peace for Lanarkshire, of contravention Macferkn*. 
by the suspender of the Act 4 th Geo. IV. c. 84, by Hi ^? ),irt - 
leaving his master's service without warning. ]86s.' 

The respondent, a cooper in Glasgow, presented a Suspend©*, 
complaint to the Justices of Lanarkshire, setting forth 
the 3d section of the Act 4th Geo. IV. c. 34, which em- 
powers Justices, on proof that any workman of the 



362 CASES BEFORE THE HIOH COURT 

No. «3. classes enumerated in the Act has left his service before 
MarfarUne. the contract with the master has ended, or is guilty of 
Hiffh Court. an y other misconduct, to pronounce a warrant com- 
1868.' mitting such workman to the house of correction for a 
Suspension, period not exceeding three months. The petition stated 
that M'Lean had contracted to serve Macfarlane as a 
cooper for an indefinite period of time, but subject to 
the rules of the petitioner's cooperage, well known to 
and understood by the defender, whereby it was, inter 
alia, agreed and understood that one week's warning 
should be given by the workmen before leaving the em- 
ployment; that M'Lean entered to the petitioner's 
service as a cooper on the 4th November 1862, but that 
without notice or warning, and without the suspender's 
consent, or any good cause, he had deserted his service 
on the 11th, and subjected himself to the penalties in 
the Act. 

The minutes of procedure bore that the petitioner 
deponed that the statements in the complaint were true, 
and that the Justice thereupon granted warrant for the 
apprehension of the defender. 

Proof was led before the Justice of the existence of a 
rule in the cooper trade that a servant should give a 
week's warning before leaving service, and receive a 
week's warning before dismissal ; that this was the rule 
in the petitioner's cooperage ; and that it was known to 
the suspender ; that immediately before he left, the sus- 
pender had complained of an injury to his arm which 
disabled him from working, but that he was found im- 
mediately afterwards working in the employment of 
another cooper in Glasgow. The minutes of procedure 
bore that the defender declared he had no proof to ad- 
duce, — a declaration which was signed by the defender. 
The Justice found the complaint proved, and sen- 
tenced the defender to fourteen days' imprisonment, and 
in terms of the statute abated a proportional part of his 
wages for that period. 

In the suspension the suspender averred that he had 



AND CIRCUIT COURTS OF JUSTICIARY. 353 

been apprehended, and immediately brought before the No* *& 
Justice ; that he had no time to procure professional MFwUne.' 
advice, and no opportunity to adduce proof; that there HighGmrt» 
was no proof that the rule requiring a week's warning mV 
was ever exhibited in Macfarlane's cooperage; that J 
there was no such rule in the trade, as the suspender 
could have proved, but had not been prepared to do so 
for want of time, and because no such general rule was 
averred in the petition ; that no such rule applied to his 
case in any view, because he was employed for piece 
work, and not on a time engagement of any kind. 

The ground of suspension stated at the bar was op- 
pression. It was averred that the suspender had asked, 
but had been refused delay, and that, if he had got de- 
lay, he could have proved that there was no general 
rule in the cooper trade, nor in the respondent's cooper- 
age known to him, or applicable to his case, which re- 
quired him to give a week's warning. The suspender 
at the bar offered proof that delay had been asked and 
refused — Orr v. M'CaUum, High Court, June 25, 1865, 
Irvine, vol. ii. p. 183. 

Lord Neaves. — The grounds of this suspension are 
frivolous aud untenable. There is nothing like an 
averment of oppression. There is no substantial aver- 
ment that this man made any remonstrance when 
called on to plead. He has put on record his declina- 
ture to lead evidence, and it would endanger the ad- 
ministration of justice in Justice of Peace Courts, if 
after that we were to entertain a complaint on the 
ground of oppression on such averments as those on re- 
cord. And I cannot enter into the view that a skilled 
workman is to be dealt with as an ignorant man, and 
requires the protection of the Court like a child under 
age, or that he cannot understand the charge made 
against him, or put questions to witnesses. To hold 
that would involve a reflection on the working men 
of this country which I am not inclined to make. 
The evidence as to the practice of trade was quite re- 

vol. ly. z 



354 CASES BEFORE THE HIGH COURT 

wlm l evan k *f ** was a g ener& l rol© of the trade that a 
M'Farianc week's warning should be given, that made it the more 
H j|^p° 9 arL probable that the existence of that rule in the respond- 
i«63. ents cooperage was known to the complainer. His 
suspension. k now iedge, besides, is otherwise proved. 
Lord Jerviswoode concurred. 
Lord Justice- Clerk. — An allegation of oppression, if 
it is well made, is a perfectly relevant ground of sus- 
pension. But it must be kept in view that the allegation 
of oppression involves a very serious charge against the 
magistrates, and it is quite out of the question to enter- 
tain it without clear and specific averments. This 
case is very simple, and has apparently been con- 
ducted in an unobjectionable though summary way. 

The suspender was apprehended, under a warrant duly 
issued, and brought before a magistrate. He pleaded 
not guilty— the charge against him being that he entered 
the service of the petitioner as a cooper, and that it was 
a condition of the engagement, and was known to the 
suspender to be so, that one week's warning should be 
given by a workman before leaving the employment ; 
that he had, without such warning and without leave 
or good cause, left the petitioner's service, and had there- 
by broken his engagement and contravened the Act 4th 
Geo. VI. c. 34. 

It is not denied that the suspender left without 
warning, and that he was found working in the em- 
ployment of another master. His only defence was, that 
he bad not sufficient knowledge of the condition of his 
employment as to the warning which he was bound to 
give. 

We must look into the evidence to discover the 
ground for the suspender's allegation of oppression, 
and there we find perfectly sufficient evidence that 
this condition as to warning was perfectly well known 
to the suspender. And so far from being an unusual 
condition which the suspender was not likely to know, 
it is the universal practice of the trade. On the face of 



AND CIRCUIT COURT OF JUSTICIARY. 855 

the proceedings the allegation of oppression is clearly M ?£^f; 

negatived. M'Fariane. 

At the same time, if it had been distinctlyand pointedly H g hC ? lrt * 
averred by the suspender that when put at the bar he imV 
had moved for delay, and that that motion had been Swpenskm. 
refused notwithstanding his statement that he had 
evidence to lead on a defence which he was not then in 
a condition to maintain, that would have been a very 
different case, and I do not say what we might have 
done had such a case been made. But in the bill I 
think we find the clearest evidence of an intention to 
shrink from such an averment. There is nothing on 
record like an averment relevant to support the general 
allegation of oppression. 

The case presents a marked contrast to the case of 
Orr. There the averment that delay had been asked 
and refused was very clear and special, and it derived a 
certain plausibility from the nature of the case, about 
which there was a good deal of popular feeling in the 
place where the trial had taken place. The result there 
was, that the ground of suspension was so far proved that 
the bill of suspension was passed. 

The suspension was refused. 

W. H. Muni, S.S.C.— Hill & Robertson, WJ5.— Agents. 



George Jufp, Suspender— Pa tt on — Millar^ 

▲GAINST 

Sir George Dunbar, Respondent — A. R. Clark 

Suspension — Justice op Peace Conviction — Competency. — Cir- 
cumstances in which, where a suspender alleged that he had been 
convicted under the Day-Poaching Act, and had been fined, and 
where the conviction was not written out, the Court refused the 
suspension as incompetent, because there was no conviction. 



356 CASES BEFORE THE HIGH COUET 

No. 64. The respondent presented an application to the 
DanL£, Justices of the Peace for the county of Caithness, in 
High court, which he accused the suspender of a contravention of 
1863.' the 1st section of the Day-Poaching Act, 2d and 3rd 
Suspension. Will. IV. c. 68, by trespassing on the respondent's 
lands of Tannach, on 15th September last, in the day- 
time, without leave, and in search of game. The com- 
plaint prayed for warrant of apprehension and infliction 
of the statutory penalty. The Justices, on the oath of 
a credible witness, granted warrant for the complainers 
apprehension ; but the warrant was not executed, as the 
suspender appeared in Court, when he pleaded not 
guilty. The minute of the proceedings before the 
Justices then proceeded thus : — 

1 Thereafter, the following witnesses were examined on oath in 
1 support of the complaint : — 1. Andrew Cleugh, junior, residing at 
4 Ochclate, on the estate of Thrampster. 

' The Justices haying considered the complaint, with the evidence 
4 adduced, finds the 1 — {No more of the sentence was written out) 

The suspender presented this note of suspension, in 
which after setting forth, inter alia, what is above stated, 
he averred that, though the sentence was only written 
out as above, the Justices had, in point of fact, sentenced 
him to pay a fine of £2, with expenses of process; that 
it was stated to him that the sentence had been duly 
pronounced, and he was informed that, unless the fine 
and expenses were instantly paid, he would be at once 
sent to prison. To avoid incarceration, as he stated, 
he paid the fine and expenses. He now prayed the 
Court to quash the sentence, and ordain the respondent 
to repay the fine and expenses. 

He argued that the complaint was incompetent, be- 
cause it did not set forth that the offence was committed 
in the statutory day-time ; besides, the proceedings were 
utterly irregular. No sentence had been recorded ; still 
there was a pretended sentence ; and a sentence had 
been pronounced on him in point of fact, and the fine 



AND CIRCUIT COURTS OP JUSTICIARY. 357 

had been extorted from him. The utter informality No. 64. 
of the proceedings was apparent, but such informality DuiSar. 
should be no reason for not now setting them aside. High Court. 

Lord Justice-Clerk. — There is nothing to suspend. i 8 63 " 
The suspender complains that the fine has been extorted suspension. 
from him on the representation that he had been 
sentenced, while in fact no sentence had been pro- 
nounced. On that ground he may or may not have 
a remedy in another form; but it cannot enable the 
Court to quash a sentence which never existed. The 
suspension must be refused as incompetent. 

The other Judges concurred. 

Suspension refused as incompetent. 

Hours & Ron, W.S.— Joan Shamd, W.S.— Agents. 



Present, 

The Lord Justice-General, ^hSs*" 

Lords Deas and Ardmillan. 

William Dawson, SuBpsn&er—Badenach-Nicolton. 

against 

Malcolm M'Lennan, Respondent — A. B. Shand. 

Suspension — Bankruptcy — Fraudulent Concealment op Property 
— Perjury — Sheriff — Jurisdiction — Assize —Challenge of 
Juror — Time (libelling of) — Amendment of Libel — Procedure. 
— A Sheriff-Substitute has jurisdiction to try the offence of wicked, 
felonious! and fraudulent concealment or clandestinely putting away 
by a person whose estates have been sequestrated, and who is un- 
discharged, of property or effects which belonged to him prior to 
such sequestration, for the purpose of defrauding his creditors. 

A peremptory challenge of a juryman in a criminal case must be 
stated when the name of Hie juryman is called, and therefore 



358 CASES BEFORE THE HIGH COURT 

an objection to a sentence by a Sheriff- Substitute on the ground 
that he had refused to sustain such challenge after the name of the 
juryman had been entered in the sederunt book of the Court, but 
before the jury was sworn — repelled. 
In a suspension of a conviction for fraudulent concealment and putting 
away of property by a sequestrated bankrupt and of perjury. — 
Held (1.), That the latitude assumed in stating the time was not 
too great. (2.) That it was not necessary to state in whose posses* 
sion the goods were prior to their being put away. (3.) Certain 
inaccuracies in setting forth the statutory oath on which the charge 
of perjury was founded, — held immaterial. (4.) Amendments of 
the libel made by the Sheriff held competent. 

DawmnV. On the 28th February 1863, the complainer was tried 

Mq * nnM1 -, at Wick before the Sheriff-Substitute of Caithness and 

Apr?^ a jury, on a criminal libel at the instance of the respon- 

1868 ; dent, the Procurator-fiscal of court. 
un * n8Mm * The libel contained six charges. 

In the major proposition of the libel, the suspender 
was charged with ' the wicked, felonious, and fraudu- 
' lent concealment or clandestinely putting away by a 
' person whose estates have been sequestrated, and who 
' is undischarged, of property and effects which belonged 
' to him prior to such sequestration, and which were 
' carried by virtue of such sequestration to the trustee 
' under the same, or his creditors under the sequestra- 
' tion, for the purpose of defrauding his creditors, as 
' also perjury.' 

The libel in the minor proposition went on to state 
the sequestration of the complainer's estates on the 10th 
September 1862, and the election and confirmation of 
James Adams as trustee on the estate on 24th Septem- 
ber and 6th October 1862. 

The fourth charge set forth that the panel, in the 
knowledge of the subsistence of the sequestration, on 
various or one or more occasions between the 6th and 
10th November 1862, or during a part of the months 
of September, October, and November 1862, wickedly, 
feloniously, and fraudulently concealed or clandestinely 
put away from the trustee, and from the creditors, cer- 



AND CIRCUIT COURTS OF JUSTICIARY". 859 

tain articles specified in the libel, being a part of the JJJj£* 
property of the panel, or of the trustee, or of the ere- M'Leman. 
ditors. The libel then stated the mode in which these HighCow*. 
articles were put away with the fraudulent intention of 1803. * 
appropriating them to the panel's own uses and pur- *»pensio». 
poses* 

The fifth charge was, that the panel committed per- 
jury in the course of his examination before the Sheriff* 
Substitute. 

The sixth charge libelled that the panel wickedly 
and feloniously, &c, took the oath prescribed by the 
95th section of the Bankrupt Act as follows, (then fol- 
lowed the oath), which bore in the usual terms that the 
state of affairs subscribed by the bankrupt contained a 
full and true account of his effects, ' and that the said 
' estate ' likewise contains a full and true account of all 
debts due by me, &c, whereas the truth was, and it 
would be proved, that the articles set forth in the pre- 
vious part of the libel as having been fraudulently put 
away were wilfully omitted from the state of affairs. 

The libel concluded that the charges libelled, or part 
of them, being proved or admitted, the panel ' ought to 
' be punished with the pains of law, to deter him and 
' others from committing the like crime in all time 
' coming/ 

The Jury found the first three and the fifth charges 
not proven, and found the panel guilty of the fourth 
and sixth charges. The Sheriff-Substitute sentenced 
the panel to be imprisoned for nine months. 

Dawson then brought this suspension and liberation. 

In the Bill of Suspension it was stated, that certain 
objections to the libel had been taken which had been 
repelled ; and it was averred that after the names of the 
jurymen had been recorded in the sederunt book of the 
court, but before they had been sworn, the complainer 
challenged one of them, but the Sheriff-Substitute held 
that the challenge was too late, and refused to sustain it. 

The complainer pleaded, (1.) The Sheriff-Substitute 



360 GASES BEFORE THE HIGH COURT 

jNo. 65. had no jurisdiction to try the offence of fraudulent con- 
M'Lenmm! cealment of property by a sequestrated bankrupt, under 
H ? h ^°2 rt ' w ^ c ' 1 ma J or the fourth charge in the minor felL Prior 
MM/ to 7th and 8th Geo. IV. c. 20, the Court of Session had 
exclusive jurisdiction in cases of fraudulent bankruptcy. 
By that statute jurisdiction in these cases was extended 
to the Court of Justiciary. But Sheriffs had no juris- 
diction in such cases, either at common law or under 
the statute, Hume, vol. i. p. 509, and ii. p. 37 ; Alison, 
vol. i. p. 567-71 ; Ersk., iv. 4, 79 ; Ersk, Prin., iv. 4, 
41 ; Lord-Advocate v. Duncan, Court of Session, Jan. 
21, 1823, 2 S. and D., 132 ; and House of Lords, June 
28, 1825, 1 W. and S., 608, 616 ; statutes 1621, c. 18 ; 
1696, c. 5 ; 54th Geo. III. c. 137, sect. 33. 

(2.) The juror though competently challenged, having 
nevertheless acted, the proceedings were null, Hugh 
M'Neillage, Inverary, Sept. 18, 1850, J. Shaw, p. 459 ; 
John M'Lean, Perth, Oct. 3, 1836, Swinton, vol. L 
p. 278. 

(3.) The fourth charge was irrelevant because of too 
great latitude in the time, Hume, vol. ii. p. 221 ; Alison, 
vol. ii. p. 253, and because the libel did not bear where, 
or in whose possession, the articles specified were before 
they were as alleged put away, Hume, vol. ii. p. 200 ; 
Alison, vol. ii. p. 290 ; Elizabeth Tonner, Glasgow, Dec. 
22, 1846, Arkley, p. 215 ; John OReiUy, High Court, 
July 14, 1836, Swinton, vol. i. p. 253. 

(4.) The sixth charge was irrelevant because, (1.) The 
fifth charge setting forth perjury founded on the bank- 
rupt's examination, and a separate charge of perjury 
could not be founded on the statutory oath ; (2.) This 
oath was inaccurately set forth and unintelligible ; (3.) 
The word ' estate ' being used instead of € state ' in the 
passage quoted above, Alison, vol. i. p. 474 ; Hume, vol. 
i. p. 371 ; James Affleck, High Court, May 23, 1842, 
Broun, vol. i. p. 854. 

(5.) The conclusion of the libel was unintelligible be- 



AND CIRCUIT COURTS OF JUSTICIARY. 301 

cause the word ' crime ' was used in the singular num- **o. «* 
ber, while two crimes were charged in the minor. M'Lennm. 

(6.) The Sheriff-Substitute had struck out the word H, | h ^ rt » 
6 crime ' which was incompetent, Hume, vol. ii. p. 280 ; ises. ' 
Alison, vol. ii. p. 307 ; and (7.) It made the conclusion i 
of the libel defective and illegal, Hume, vol. ii. p. 155 ; 
Alison, vol. ii. pp. 219, 221, 309. 

Shand, for the respondent, the Procurator-fiscal, re- 
ferred to Hume, vol. i. p. 509, and ii. p. 37, 221, 240 ; 
Alison, vol. i. p. 667, and ii p. 219, 253, 309 ; Bell's 
Notes to Hume, p. 238 ; Statutes 1696, c. 5 ; 1621, 
c. 11 ; 7th and 8th Geo. IV. c. 22, sect. 16 ; Lord Ad- 
vocate v. Duncan, and John M'Lean already referred to. 

The Lord Justice-General. — A great variety of ob- 
jections, not all of equal importance, have been stated 
by the counsel for the suspender. The first was as to 
the jurisdiction, and it was contended under it that the 
Sheriff had no jurisdiction in cases of fraudulent bank- 
ruptcy. The argument was, that until the statute of 
6th and 7th Geo. IV., the Court of Session was alone 
competent to try such a charge, while the statute ex- 
tended the jurisdiction only to the High and Circuit 
Courts of Justiciary. It was quite true that the statute 
did not give the Sheriff any power which he did not 
possess before. (The Lord Justice-General then com- 
mented on the case of Lord Advocate v. Duncan, and 
continued) — Neither the case of Duncan, nor any other 
authority, settled that fraudulent bankruptcy could not 
be prosecuted at common law. Now, the present in- 
dictment was not laid on the Act 1696 ; neither was the 
crime charged a fraudulent bankruptcy, in either of 
which cases their might have been more difficulty. The 
indictment was laid on certain fraudulent Acts, which 
he (the Lord Justice-General) thought might be tried 
at common law, and before the Sheriff. 

The second objection related to the Sheriff's refusal 
to sustain the challenge of one of the jurymen. The 
challenge which had been made was a peremptory one, 



362 CASES BEFORE THE HIGH COURT 

Ko.65. an d the statute said that such a challenge must be 
M'Lennan! stated when the name of the juryman is drawn. Had 
High conn, the challenge been one on cause shown it might perhaps 

/Us. ' have been a ground of exclusion. 
Supennon. The third objection was to the manner in which the 
fourth charge was stated in the indictment. (1.) It was 
said that the prosecutor had taken too great a latitude 
in libelling the charge. The latitude that had been 
taken was regulated by the usage of the Court, and that 
again depended on the nature of the offence charged. 
Thus greater latitude was always allowed in cases of 
fraudulent abstraction by a servant than in ordinary 
cases of theft. The present was a case in which a 
greater latitude than usual should have been allowed. 
It was said that the prisoner was thereby hampered in 
the use of his pica of alibi. But the way in which that 
plea had been stated by him was such as to deprive him 
of all ground of complaint on that score. He ought to 
have made his plea far more particular and precise. 
(2.) It was maintained that the fourth charge did not 
set out distinctly in whose possession the articles 
concealed had previously been. But the indictment set 
forth whose property they were, and that was enough. 

The fourth objection consisted of criticisms on the oath 
which had been taken by the suspender. The true ques- 
tion for consideration was whether this oath being law- 
fully administered was a false oath ? Was this which 
was set out in the indictment in substance the statutory 
oath which could have been sustained as such if 
challenged by a creditor ? He (the Lord Justice- 
General) thought it was, and therefore that the criticisms 
on it were not well founded. 

The fifth objection was rested on the Sheriff having 
it was said illegally and unwarrantably struck out the 
word ' crime' from the conclusion of the indictment. He 
(the Lord Justice-General) had always been jealous of 
striking words out of the libel. It was not a common 
practice in his early experience, but it seemed to be 



AND CIRCUIT COURTS OP JUSTICIARY. 

much more frequently necessary now. The deletion of dJ^J^ 
words in an indictment must however be dealt with ac- M'Lennan. 
cording to their materiality. He could not regard the u ^pJ^' 
word which had been deleted in the present case as 1868 - 
material. Indeed he did not think that the connection s^ 08 * 00 - 
in which it occurred was an indispensable part of the 
indictment at all. The conclusion of the indictment 
was complete at the words € pains of law.' What 
followed was not material at all. He was therefore of 
opinion that the bill of suspension must be refused. 

Lord Deas and Ardmillan concurred. 

The Court repelled the objections, and refused the 
Bill of Suspension, with expenses. 

Gibson & Tait, W.S.— Thb Cbowr Agent.— Agent*. 



NORTH CIRCUIT. 



ABERDEEN. A ?S. 28 ' 

Spring 1863. 

Judges — Lords Cowan and Abdmillan. 

John and Alexander Lockie and Co., Appellants— ifadenacA- 

Nicolson. 

AGAINST 

William Brown, Respondent — W. A. Brown. 

Sheriff Court — Statute 1st Vict. c. 41 (Small Debt Act)— De- 
cree — Diligence — Charge — Sist. — A pursuer obtained decree 
in absence in a Sheriff's Small Debt Court, and charged the defen- 
der on the decree. The charge became inoperative by the lapse of 
a year, and he gave a new charge. — Held, that the defender might N °: *•• 
have execution sisted, and the case heard at any time within three Co. v. 
months of the second decree. Brown. 

Aberdeen. 

On the 23d September 1858, the appellants charged A gg* 
the respondeat on an extract small debt decree in ab- Appeal. 
sence obtained on 9th October 1856. By the 13th 



364 



CASES BEFORE THE HIGH COURT 



No. 66. 

Lockieand 

Co v. 

Brown. 

Aberdeen. 
April 28. 
1863. 

Appeal. 



section of the Small Debt Act, 1st Vict. c. 41, it is pro- 
vided, that if a small debt decree ' shall not be enforced 
' by poinding or imprisonment within a year from the 
' date thereof, or from a charge for payment given 
' thereon, such decree shall not be enforced without a 
' new charge.' 

More than a year having elapsed since the date of 
the charge, the appellants, in 1862, gave the respondent 
a second charge on the decree, the respondent there- 
upon obtained asist of execution under the 16th section 
of the Small Debt Act/ providing that when a decree in 

1 The Act 1st Vict c. 41, sec 16, provides — ( That where a decree 
has been pronounced in absence of a defender, it shall be competent 
for him, upon consigning the expenses decerned for, and the further 
sum of ten shillings to meet further expenses, in the hands of the 
clerk, at any time before a charge is given, or in the event of a 
charge being given before implement of the decree has followed 
thereon, provided in the latter case the period from the date of the 
charge does not exceed three months, to obtain from the clerk a 
warrant signed by him sisting execution till the next Court day, 
or to any subsequent Court day, to which the same may be ad- 
journed, and containing authority for citing the other party, and 
witnesses and havers for both parties ; and the clerk shall be bound 
to certify to the Sheriff on the next Court day every such application 
for hearing and sist granted ; and such warrant being duly served upon 
the other party personally, or at his dwelling-place, in the manner 
provided in other cases by this Act, shall be an authority for hearing 
the cause ; and in like manner, where absolvitor has passed in. ab- 
sence of the pursuer or prosecutor, it shall be competent for him, at 
any time within one calendar month thereafter, upon consigning in 
the hands of the clerk the sum awarded by the Sheriff in his decree 
of absolvitor as the expenses for the defender and his witnesses, with 
the further sum of five shillings to meet further expenses, to obtain 
a warrant, signed by the clerk, for citing the defender and witnesses 
for both parties, which warrant being duly served upon the defender 
in the manner provided in other cases by this Act, shall be an 
authority for hearing the cause as hereby provided in the case of a 
hearing at the instance of the defender, the said sum of expenses 
awarded by the Sheriff, and consigned as aforesaid, being in every 
case paid over to the other party, unless the contrary shall be 
specially ordered by the Court ; and all such warrants for hearing 
shall be in force, and may be served by any sheriff officer in any 
county, without indorsation or other authority than this Act' 



Appeal. 



AND CIRCUIT COURTS OP JUSTICIARY. 365 

absence is pronounced against a defender, it shall be j^^ d 
competent for him, upon consigning certain expenses in &>- «• 
the hands of the clerk at any time before a charge is Abard6ttl 
given, or in the event of a charge being given, before April 28. 
implement of the decree has followed thereon, provided, 
in the latter case, the period from the date of the charge 
does not exceed three months, to obtain from the clerk 
a warrant sisting execution, and that in that case, the 
Sheriff-Substitute shall hear and decide the case. The 
appellants objected to the sist as incompetent, on the 
ground that execution could not be sisted under the 
16th section, after three months has lapsed from the 
date of the charge, and that in this case more than a 
year had elapsed since the first charge. The Sheriff- 
Substitute repelled these objections, and having heard 
the case, assoilzied the defender. 

The pursuers then appealed to the Circuit Court, on the 
ground of deviation from the statutory form. They 
argued, that the decree was final, that under the 13th 
section of the Small Debt Act, a decree in absence was 
after a charge put on the footing of a decree in foro, 
except only that the defender might be reponed within 
three months, but not afterwards. 

The Court held, that the 16th section of the statute 
applied to any charge on a decree in absence against a 
defender, whenever a party tried to make his decree 
operative, the remedy given by the 10th section was 
open to the defender. The previous charge had fallen 
to all intents and purposes as if it had never been given. 

Appeal dismissed. 



360 CASES BEFORE THE HIGH COURT 

Judges — Lords Ardmillan and Neaves. 

George Tough, Appellant. — Badenach-Nicohon, 

against 

Alexander Jopp, Respondent. — Skelton. 

Appeal — Statute 25th and 26th Vict. c. 97, (Salmon Fisheries Act) 
— Weekly Close-Time — Bye-Laws — Justice op Peace — Procu- 
rator-Fiscal (Concurrence op) — Conviction. — Objections to a 
eonviction for fishing with stake nets during weekly close- time in con- 
travention of the Salmon Fisheries, Scotland, Act, 1862. — (1.) That 
the Justices who heard the complaint were not the same Justices 
who granted warrant ; (2.) that the concurrence of the Procurator- 
Fiscal was necessary, and had not been procured ; (3.) that the 
locus was not sufficiently described ; (4.) that as no bye-laws as to 
weekly close- time had been made under the Act, its provisions in 
that respect had not come into operation; and, (5.) that the charge 
being alternative that the appellant did fish for or take salmon, the 
conviction which was a general one of guilty was bad for un- 
certainty — repelled. 
No. 67. 

Tough «. This was an appeal against a conviction by the 
Aberdeen J us ^ ces °f *^ e Pe&ce for the County of Aberdeen, on a 
April 28. complaint at the instance of the respondent, proceeding 
on ' The Salmon Fisheries, Scotland, Act, 1862/ 

The complaint set forth ' that Joseph Tough, Salmon 
' Fisher, Belhelvie, tacksman of the Eggie and Drom- 
' side Salmon Fisheries, has been guilty of a breach or 
' contravention of the Salmon Fisheries Act, 25th and 
' 26th Vict. c. 97/ in so far as, upon the 22d day of 
February, 1863, being a Sunday, the said George 
Tough did fish for or take Salmon at the Eggie and 
Drumside Fishings aforesaid, or at one or other of the 
said fishings, by means of one or more stake or fly nets, 
which it was alleged the appellant had then and there 
set, fixed or placed, for that purpose, during the weekly 
close-time, whereby he had incurred the penalties of 
the statute. 
Warrant was granted by two Justices to summon the 



1863. 
Appeal. 



AND CIRCUIT COURTS OF JUSTICIARY. 367 

appellant, and he appeared and stated various objections J* 0a ? 7 * 
to the competency of the complaint. These objections Jqpp- 
being repelled, he pleaded not guilty. The Justices A* ep ? 1 e S* 
who heard the cause € Find the complaint proven, and i863. 
' that the said George Tough is guilty of the offence set Appeal. 
' forth in the foregoing complaint, therefore fine and 
' amerciate the said George Tough in the sum of one 
' shilling sterling.' 

Tough appealed to the Circuit Court of Justiciary in 
terms of section 28th of the Act, and contended, (1.) 
That of the three Justices who heard the complaint 
only one had signed the warrant to summon the appel- 
lant. Under the 28th section of the Act the two 
Justices who signed the warrant were those who only 
were authorised to try the complaint. 1 (2.) The con- 
currence of the Procurator- Fiscal was necessary ; offences 
against the statute were crimes, and the provisions of 
the statute having reference to the interests of the 
public. (3.) The locus was not sufficiently libelled. 
(4.) The provisions of the Act as to the weekly close- 
time had not yet come into operation. The 7th section 
of the Act provided that the weekly close-time, except 
for rod and line, should continue from six on Saturday 
night till six on Monday morning ; but that the Com- 
missioners should have power, on the application of the 
district board, to vary to a certain extent the period at 
which the weekly close-time should commence. Then 
by the 6th section the Commissioners were empowered 
to make regulations with respect to, inter alia, ' the due 
1 observance of the weekly close-time ;' and by the 16th 
section it was provided that on or before the 1st 



1 The Statute 24th and 25th Vict. c. 97, provides, inter alio, by 
section 28, that all offences under this Act may be prosecuted, and 
all penalties under this Act may be recovered, before any Sheriff or 
any two Justices acting together, and having jurisdiction in the place 
where the offence was committed, at the instance of the Clerk of any 
district board t or of any other person. 



368 CASES BEFORE THE HIGH COURT 

To^h 7 'r. January 1864, they shall make bye-laws, regulating, 

j °pp- among other things, the due observance of the weekly 

A J^rii28! close-time, and should report their bye-laws to the 

1863 - Secretary of State ; and it was provided that any one 

Appeal, having interest might state to the Secretary of State ob- 
jections to these bye-laws. Now, no district under the 
Act had been formed, nor had any bye-laws yet been 
made, and therefore the mode in which the weekly close- 
time was to be observed had not been determined. It 
was therefore impossible to say what was a breach of 
the provisions of the statute as to close-time. The 
Justices of the Peace in deciding that the appellant had 
contravened these provisions were usurping the duties 
of the Commissioners, and in effect depriving the 
persons interested of their right to object to such rules 
as might be proposed by the Commissioners. The 
fishings in question were sea fishings. Prior to the 
Act there was no close-time as to sea fishings. The 
weekly close-time in this case did not exist till created 
by the Act. (5.) The charge was alternative for fishing 
for or taking salmon while the judgment was general, 
and therefore uncertain. 

Skelton, for the respondent, was not called on to 
reply. 

Lord Cowan said there was no ground for the 
argument (1.) that the Justices who granted warrant to 
summon the person accused were the only Justices who 
could competently hear the complaint ; there were no 
sufficient grounds for such a construction of the statute, 
and it was not necessary by the common law. (2.) The 
concurrence of the Procurator-fiscal was not required, 
as any one may prosecute under this Act. (3.) As the 
appellant was tacksman of the fishings where the 
offence was said to have been committed, he could not 
be in doubt as to the locus. The fourth objection 
raised a question of some interest and importance, but 
not of difficulty. If the appellant's argument were 
sound, then if the Commissioners should think it unneces- 



AND CIRCUIT COURTS OP JUSTICIARY. 369 

sary to frame bye-laws, the provisions as to weekly ,? -? 7, 
close-time could not be enforced at all. The regulations Jopp. 
to be made could only ensure the due observance of close- ^"SSJ' 
time. But the provision that there should be a close- 1863 » 
time did not depend on such regulations. As to the App** 1 - 
fifth objection fishing for and taking salmon were not 
two separate offences, but two modes of committing the 
same offence. 

Lord Ardmillan concurred. 

Appeal dismissed. 

J auks Collib, Advocate, Aberdeen. — A. Jopp, Advocate, Aberdeen. — Agents. 



George Greig, Appellant. — Badenach-Nicotson. 

AGAINST 

Alexander Jopp, Respondent.— -Skcllon. 

Appeal — Statute, 25th and 26th Vict. c. 97, (Salmon Fisheries) — 
Weekly Close-Time — Conviction — Procedure. — A conviction 
for fishing daring weekly close-time in contravention of the Salmon 
Fisheries Act of 1862, set aside on appeal, in respect the special facts 
found proved did not establish the offence charged. 

The appellant was charged at the instance of the re- No. 68. 
spondent with contravention of the Salmon Fisheries G j£j* * 
Act, 25th and 26th Vict. c. 97, by fishing for Salmon Aberdeen. 
at Millden Salmon Fishings, in the Parish of Belhelvie, A J^ 8, 
with stake or fly nets during weekly close-time. Appeal. 

The Justices after a proof — ' Finds that the two nets 
' at Millden Fishings, whereof Mr George Greig is sworn 
' to be the tacksman, were proved to have been set, and 
' in a fishable condition, during the weekly close-time, on 
' Sunday, the 22d February last, whereby he rendered 
* himself guilty of contravening the Act. Therefore find 
' the complaint proven, and amerciate the said George 
€ Greig in the sum of ten shillings.' 

Greig appealed, and the same objections were taken 
as in the immediately preceding case of Tough v. Jopp. 

VOL. iv. 2 A 



370 CASKS BEFORE THE iHOH OOUET 

Grai M# " was a ^° objected &** the facts found proven in the 

Jopp.* judgment of the Justices did not establish the complaint 

Aberdeen. The Court sustained this last objection, because it 

1863. ' did not appear from the judgment that the appellant 

Appeal, had any knowledge of the nets being set 

The Court set aside the conviction. 



SOUTH CIRCUIT. 
DUMFRIES. 
1863. ' Judge — Lord Deas* 

Her Majesty's Advocate. — A. MoneriqF A.D. 

AOAIN8T 

Adam Coupland— 3fatr, 

AMD 

William Beattie — Cowan. 

Assault — Evidence — Hearsay — Lunatic — Sentence. — Ib a 
charge of assault alleged to have been committed against a lunatic 
patient by two keepers in the asylum, a witness for the prosecution 
deponed that he asked the lunatic ' Who had assaulted him 7 The 
question objected to by the prisoner's counsel, and disallowed by the 
Court, the lunatic not being on the list of Grown witnesses, and 
there being no proof that he was incapable of giving evidence. 

(2.) Two keepers in an asylum sentenced to six months' imprisonment 
for an assault on a lunatic patient 

No. $9. Adam Coufland and William Beattie were charged 
Copland with assault, especially when committed to the effusion 
*]tottuT of blood, serious ixgury of person, and danger of life, 

^rinT" In 80 fab A8 » m * 6 16th **& °* Jannw 7 186S » or on one er other 
1 863. ' of the days of that month, or of December immediately preceding, in 
Atmanlt or near *he Southern Counties Asylum, situated in the parish and 
shire of Dumfries) you the said Adam Coupland and William Beattie 
did, both and each or one or other of you, wickedly and feloniously 
attack and assault Thomas Lorimer, then and now or lately a patient 
in said Asylum, and did seise hold of Mm and throw him down, and 
with your fists and feet, strike and lock him repeatedly on his head, 
sides, and other parts of his person, and did otherwise malfoeat and 



AND CIRCUIT COURTS OP JUSTICIARY. 371 

•bote him ; by all whioh, or part thereof; the said Thomas Lorimer No. 69. 

was hurt, bruised, and wounded, to the effusion of his blood, serious Coup^d 

injury of his person, and danger of his life* * William 

Beattie. 

Mair, for the prisoner Coupland, moved that the Dumfries, 
prisoners be tried separately. The case was one of a A im. 4 ' 
very peculiar kind, and he based his motion on the Assault. 
grounds that the person alleged to be injured was not 
included in the list of witnesses, because he was not 
considered capable of giving evidence in a court of 
justice, while on the other hand it was proposed to ad- 
duce as witnesses for the Crown five insane patients in 
the Asylum who were admittedly the only persons 
present when the alleged assault was committed. 
The only sane persons present were the prisoners, and 
he thought it indispensable that they should be tried 
separately, in order that they might have the benefit of 
each other's testimony. If ever there was a case in 
which the motion for a separate trial ought to be granted 
it was the present. 

Cowan, for the panel Beattie, did not concur in the 
motion. He thought the prisoners ought to be tried 
together, but if they were to be tried separately, then 
he would move that Beattie be not put on oath until 
after he had been tried. 

Lord Deas. — It is perfectly competent to move for a 
separation of the trials, and it is quite competent for the 
Court to order that separation. At the same time it is 
a very unusual thing for the Court to interfere in that 
way. The public prosecutor is supposed— and I think 
rightly supposed — to conduct all these prosecutions in 
the manner which he thinks fair towards the prisoners 
and towards the public. He is invested with a large 
discretion ; he is in use to exercise, and he is entitled to 
exercise, a large discretion, and it is not usual for the 
Court to interfere with that discretion. It is so unusual 
that during all the experience I have had as a public 
prosecutor and a judge, although I may have frequently 
heard the motion for a separate trial made, I have not. 



372 CASES BEFORE THE HIGH COURT 

Ad,ra' been concerned in any case in which it wa granted. 
Coupiand At the same time I do not mean to say that it is incom- 

& William , J 

Beattie. petent, nor would I refuse it on that ground if sufficient 
Dumfries, reasons were stated. If sufficient reasons were stated to 
1863. " lead me to doubt whether the public prosecutor was ex- 
Assauit. ercising a sound and fair discretion, I would certainly 
order the trials to be separated ; but I cannot say that 
I see anything in this case which goes very peculiarly in 
that direction. On the face of the indictment the case 
appears peculiar in this respect, that the alleged assault 
was committed within the bounds of a lunatic asylum, 
and upon a patient in that asylum. The prisoner's coun- 
sel says that all the witnesses are to come from the 
asylum ; that may or may not be so, but I will assume 
that it is so. It rather appears to me that the presump- 
tion is that that would create a difficulty on the part of 
the public prosecutor in proving the case, and if there was 
a difficulty of that kind the prisoners would have all the 
benefit of it, so that, even if it stood there, I should 
greatly doubt whether I would be called on to interfere. 
But when this motion, made on behalf of one of the 
prisoners, is objected to on behalf of the other, then, 
even if the Court were more disposed to interfere than 
it is, I think I would be called on to pause and consider 
well before granting the motion. Taking the whole 
circumstances into consideration, it does not appear to 
me that I ought in point of propriety to interfere, in 
this case more than any ordinary case, with the discre- 
tion of the public prosecutor in having these prisoners 
tried together. 

The panels pleaded Not Guilty, and the case went to 
trial. 

The first witness for the prosecution was one of the 
attendants in the asylum, who deponed generally to the 
circumstances of the alleged assault. The Superinten- 
dent Keeper of the Asylum was then examined ; he 
described the injuries on Lorimer's person, and said he 
had asked Lorimer who inflicted them. 



AND CIRCUIT COURTS OF JUSTICIARY. 373 

Moncrieff, for the prosecution, proposed to ask the No. 6d. 
witness, ' what Lorimer said in reply ?' coupiTnd 

Cowan, for the panel Beattie, objected. — Lorimer was & j££m™ 
not included in the list of witnesses, but the Crown was l^ um f r j 1?8 
bound to produce the best evidence, viz., the evidence ^g 1 ' 14, 
of the person assaulted if he was in life. It was only in ., — 
the case of a person who was dead that the statement 
of what he said could be received. On the face of this 
indictment there was no reason stated for the non-pro- 
duction of this witness. It was merely said that he was 
a patient in the Asylum, but that was not conclusive 
evidence of his insanity, so as to prevent his being ad- 
duced as a witness. — Hugh M'Namara, High Court, 
July 24, 1848, Arkley, p. 521, and Dickson on Evidence, 
p. 844. 

Moncrieff, for the prosecution, replied, that Lorimer's 
statement was part of the res gestce. The value of it as 
evidence might be very little, but as part of the circum- 
stances in the case he submitted that it ought to be laid 
before the jury. 

Lord Deas was quite clear at this stage of the case he 
could not admit the evidence. The Advocate-Depute 
might maintain that Lorimer was incapable of being 
adduced as a witness, but it did not follow that that 
would be made out, and counsel for the prisoner would 
have an opportunity of putting him in the witness box. 

The question was therefore disallowed. 

Thereafter in course of the trial — 

Moncrieff, for the prosecution, asked the assistant- 
surgeon of the Asylum as to the mental condition of 
Lorimer. 

Cowan, for the panel Beattie, objected. — The ques- 
tion applied to the particular form of mania or excite- 
ment under which the patient was supposed to labour — 
he said ' supposed/ because it was not stated in the in- 
dictment that he laboured under any form of mania, or 
any incapacity to be present there that day, and the 
ground on which he objected was, that he was entitled 



374 CASES BEFORE THE HIGH COURT 

A°d^' *° k ftve notice of the reason why the person assaulted 
cropland was not there. Such notice he had not received, and it 

A. Willium 

Beattie. was not stated in the indictment, all that was stated 

iwriea. there being that Lorimer was a patient in the asylum. 

?863. ' The Advocate-Depute in reply said, he was not aware 

Assault of any principle in law under which he was bound to 

give notice of all the kinds of evidence he meant to lay 

before the jury. 

Lord Deas. — It is quite true that in a number of cases 
the person assaulted is the best evidence, but the public 
prosecutor is not always bound to put him in the list of 
witnesses. He may have a dozen of persons who were 
looking on and saw it all, and who are even more to be 
believed than the person who was assaulted, and there 
may be many reasons why he should not be put in at all. 
And besides, we do not yet know for what purpose and 
for what effect this line of examination is proposed to be 
gone into. There is no reason to suppose as yet that it 
goes farther than to account why the person assaulted is 
not put into the witness box. I do not see that I can 
exclude the question. 

Hie surgeon deponed, that Lorimer was suffering from 
chronic mania, and was incapable of understanding an 
oath. He also deponed, that two of the witnesses in 
the list, patients in the asylum, were capable of giving 
evidence, but the question of their admissibility was not 
raised, as the prosecutor did not put any of them in the 
box. 

The declarations of the panels were to the effect that 
Lorimer had struck another patient, that Coupland and 
Beattie had interfered, and a scuffle had ensued, in 
which Lorimer was slightly injured. It appeared, how- 
ever, from the witnesses, that Lorimer s injuries were 
considerable, and there was additional evidence of a 
scuffle between the panels and Lorimer. 

Evidence waa led for the defence, with the view of 
proving that Lorimer was a dangerous lunatic, but the 
evidence on this point was conflicting. 



AND CIRCUIT COURTS OF JU8TICIAHY. 375 

Counsel for the panels contended, that part of the *fc£ 
injuries Lorimer had sustained might have been inflicted ^Jljjjjj^ 
by other lunatics whom he had attacked, and part of Be»ttie. 
than might have been received by him accidentally ^°™^ 
when falling. Keepers in an asylum were, or might be ****- 
warranted in using a certain measure of force, and even A«Mit. 
of violence, in controlling a lunatic. It was not proved 
that the panels had gone beyond that. 

Lord Deas charged the jury. — He said, in an ordinary 
case, where one man attacked another, where the parties 
are in no peculiar relation to each other, the man who 
is attacked is quite entitled to retort what he gets. He 
is~not entitled, even then, to carry the violence upon his 
part beyond what is reasonable and necessary. He is 
entitled to defend himself, and if there is good ground 
for apprehending that his life is in danger, he may even . 
go the length of taking the life of the other man rather 
than lose his own. But then, in a case that occurs 
within the walls of an asylum, and where the question 
is between the keeper and his patients, you will see that 
the rule of law must be very different. If a patient 
strikes a keeper, the keeper is not entitled to strike back 
upon the patient on the same principle as he would be 
entitled to do upon a man who assaulted him on the 
high-road. He is certainly entitled to do what is neces- 
sary to protect himself from any serious injury. If his 
life were in imminent danger, he might even be entitled 
to take the life of the patient rather than lose his own. 
But the ordinary principle applicable to other cases cer- 
tainly does not apply here. He is not entitled to strike 
back merely because he is struck. If he is struck or 
violently interfered with in any way, his duty is to go 
away, if he can, and get assistance, or if necessary, to 
give information or an alarm ; but undoubtedly his 
duty is, as far as practicable, and as far as is consistent 
with the safety of his own life, or his own personal safety, 
to avoid returning violence by violence. And if that 
were not so, in place of its being an advantage to put 



376 CASES BEFORE THE HIGH COURT 

Adm' lunatics into an asylum — instead of its being for the 
Awnium ^is&Lction °f rt^ friends and the safety of themselves 

B**ttie. and all concerned to have them there — it would be 

^riflT* ( l u ^ e ^ e reverse - Certainly all lunatics are not violent, 
1863. but there are very few of them who may not become so, 

Aaaauit a nd no keeper is entitled to take — and I believe no one 
does take — employment in an asylum without knowing 
quite well that he may expect to meet with a certain 
degree of violence there, that he is not entitled to resent 
violence with violence as he would be elsewhere, and 
that it is his duty on the other hand to avoid encoun* 
ters of that kind as far as it is practicable. That is one 
great reason why lunatics are put into asylums. There- 
fore although we were to believe in this case that the 
man Lorimer did use violence to these men at the bar, 
that is by no means of itself a justification for their 
using violence to him. A great deal has been said in 
regard to the use of the words ' wickedly and feloniously* 
in this indictment. These words, I may tell you, are 
used in all libels of this kind. They mean nothing 
more than this — whether the assault was committed 
justifiably or unjustifiably. If there was no other patient 
in actual danger from the violence of Lorimer at the 
time, and if the prisoners themselves were not in such 
danger that they could not escape by walking away, 
then if they did use violence to Lorimer, that was unjusti- 
fiable. The first question then is — whether any violence 
was used to Lorimer ; the second, whether the prisoners 
used that violence ; and the third, was that violence 
justifiable. Lord Deas then proceeded to remark on 
the evidence as bearing on these points. 

The jury, by a majority, found the panels guilty as 
libelled, with the exception of the aggravation of danger 
to life. 

Sentence, imprisonment for six months. 



AND CIRCUIT COURTS OP JUSTICIARY. 377 

AYR. 

Judges — The Lord Justice-Clerk and Lord Deab. 
C. B. Rowan, Appellant, 

AGAINST 

James Mercer, Respondent — M l Lean. 

Appeal — Statute 1st Vict, c.41, (Sheriff Small Debt Act) — Sheriff 
Clerk — Decree in Absence — Diligence — Poinding — Sist — 
Procedure. — Under the 16th section of the Sheriff Small Debt 
Act it is incompetent for the Sheriff Clerk to issue a warrant sisting 
execution on a small debt decree after a poinding has been executed. 

The defender in a small debt action appeared at the first calling and 
got the cause continued, but without stating any defence. At a 
subsequent diet he railed to appear, and decree was given against 
him ' in absence.' Question whether this was properly a decree in 
absence. 

C. B. Rowan, Writer, Ayr, sued James Mercer, No 70 
Writer, Largs, in the Sheriff Court of Kilmarnock, for jgJJJ^* - 
a sum of £6, 15s. The action was called for the first — A 
time on 8th November, 1862. An Agent appeared for ****** 
the defender, and, without stating any defence, got the - 
case continued to 22nd November, when he again ap- 
peared and got it continued to 6th December. At the 
last diet, Mercer having failed to appear, Rowan took 
decree € in absence* for the amount sued for. The de- 
cree was extracted, and on the 18th February 1863 
Mercer was charged. On the 25th February a poinding 
was executed, but before a sale of the poinded effects had 
taken place, Mercer on 5th March applied for and ob- 
tained from the Sheriff Clerk a warrant sisting execution, 
under the 16th section of the Sheriff Small Debt Act. 1 

At the hearing of the case directed by this section 
of the statute, the Sheriff-substitute pronounced a 

1 See the section quoted in foot note to case of Lockie v. Broum, 
above, p. 363. 



1863. 
Appeal. 



378 CASES BEFORE THE HIGH COURT 

Bow * decision sustaining the sist against this decision, the 

Mereer.' present appeal was taken to the Circuit Court of 

Ayr. Justiciary in terms of the 31st section of the Act. 

1863. ' The appellant, the pursuer in the small debt ac- 

AppetL tion, objected to the competency of the sist on these 

grounds : — 

(1.) The decree of 6th December 1862 was not 
properly a decree in absence. The contrary can be 
maintained only on the ground that at the first calling 
of the case the respondent stated no defence. But it 
was the design of the Small Debt Act to introduce a 
summary mode of procedure, under which appearance 
by a party, especially when made as here for the purpose 
of getting a case continued, implies at least a denial of 
the claim made against him. (2.) In the event of a 
charge being given the statute allows a sist only ' before 
' implement of the decree.' That poinding is imple- 
ment has been expressly decided, Stephenson Sf Company 
v. DoUtins, Court of Session, Feb. 17, 1852, 14 D. 610 ; 
Anderson v. Anderson, Court of Session, June 6, 1855, 
17 D. 804. And even assuming that it was only im- 
plement in part, still the sist would be incompetent, for 
it was not applied for till after the poinding had been 
executed. 

For the respondent it was argued— (1.) In the Small 
Debt Act ' decree in absence' has no special meaning. 
The common law rule must therefore be applied, accord- 
ing to which a decree is to be treated as in absence, not 
only till appearance has been made, but till defences 
have been proposed, Ersk. iv. 69, 3-6. In the present 
case the respondent had not stated any defence, nor in 
point of fact made any denial of the debt sued for. 
Farther, the decree in question was not one of default 
At the time when it was pronounced there was no order 
standing against the respondent which he had failed to 
obtemper. (2.) Under the Small Debt Act poinding 
was a mere step of diligence, imposing indeed a nexus 
upon the goods poinded, but requiring to be completed 



AND CIRCUIT COURTS OP JUSTICIARY. 379 

by a sale. Until a sale has taken place it cannot be ^^ tt °; 
said that the decree has been implemented. The cases Mercer/ 
referred to by the appellant occurred under a statute of Ayr. 
which the language was different from the present. At mz. ' 
the most they decided only that poinding was part im- ~ 
plement. But the implement contemplated by the pre- 
sent statute was implement in full. 

The Lord Justice-Clerk. — The appeal raises two 
questions of general importance. The first is attended 
with so many difficulties as I at present view it, that I 
should not be disposed to decide the cause at once, 
if it depended on that question alone. But there is 
another question on which I have not any doubt. I 
shall assume therefore that the decree was in absence, 
(reads section 16th of the statute). I cannot hold that 
the section gives the Sheriff power to sist after a poind- 
ing has been executed. There is one expression in the 
clause which has a fixed meaning, viz., ' sisting execu- 
tion.' That is applicable to the case of a decree extracted 
and a charge given, or of a decree pronounced and a 
charge threatened. To sist execution is to stay diligence 
so as to prevent the decree being enforced ; and the ques- 
tion here is, whether the Sheriff Clerk was in the posi- 
tion in which the statute authorises him to issue a sist. 
It is to be observed that he is the person to issue the sist ; 
there is no appeal to the discretion of the Sheriff. But 
here a poinding was executed before a sist was applied 
for. After that a sist was not a competent mode of 
staying procedure. The proper form for preventing a 
threatened sale under a poinding is by a petition for in- 
terdict. My view is that the Act entitles a defender 
to be reponed after a charge, and that only within three 
months after the charge. But the sist, it is provided, 
must be ' before implement.' In the cases of Stephenson 
and of Anderson it was decided under the 1st and 2d 
Vict. c. 119, that poinding is implement. It is vain to 
say that the difference of expression between that statute 
and the Small Debt Act makes any difference on the pre- 



380 CASES BEFORE THE HIGH COURT 

rIwm v 8en * <l ue8 ti on - I n that statute the words are, where the 

Mercer, decree ' shall not have been implemented in whole or 

£**- ' in part/ and it is now argued that poinding is only part 

1863. " implement, and that a sale is necessary to constitute full 



Appeal implement so as to bar a sist. But I cannot so read the 
Act. In the cases referred to the Court held that poind- 
ing was implement, although it depended on the result 
of the sale whether ultimately it would be implement 
in whole or only in part. But if poinding be implement it 
makes no difference whether ultimately a sale should 
realize full payment. On this view the defender was 
not in a position to obtain a sist. I am of opinion 
therefore that the appeal must be sustained. 

Lord Deas. — Two objections are here stated to the 
Sheriffs judgment — (1.) That the decree was not a de- 
cree in absence ; and (2.) That it was not competent to 
grant a sist after a poinding had taken place on the de- 
cree. The first objection raises a question of difficulty, 
and as the decree cannot be said to be one in absence, 
the question comes to be whether the expressions used 
in section 16th of the Small Debt Act comprehend what 
we call in the Court of Session decree of default. I 
think it is not necessary to decide that question, be- 
cause, assuming that it was a decree in absence, the 
further objection is taken that a sist is not competent 
after poinding, and I think it is a good objection. The 
cases of Stephenson Sf Co. and Anderson decide that 
poinding is implement. The only difference here is 
that the statute under which these cases occurred had 
the words where implement shall not take place in 
whole or in part. That finds that a poinding is imple- 
ment, and leaves only the question whether under the 
Small Debt Statute it is necessary that there should be full 
implement I cannot think it is necessary that there shall 
be full implement. I cannot hold that if the whole sum 
decerned for, except one penny, had been paid it would 
be competent to obtain a sist. There are many reasons 
for this. One is, that the object in giving the pri- 



AND CIRCUIT C0URT8 OP JUSTICIARY. 38 1 

vilege of a sist is that the party shall not be taken una- jj^ ;. 
wares without an opportunity of defending himself. Mercer. 
Again, the provisions of the statute is that it shall be M £f 5' 2# 
competent to obtain a sist within three months after a 1863 - 
charge provided it be before implement ; but the argu- a w mL 
ment of the respondent makes the reading of the Act 
that it shall be competent to sist execution at any time 
within three months after a charge. If the debtor 
makes a partial payment he is acknowledging the decree, 
and the moment we have it found that poinding is im- 
plement, which it is on the same principle as a partial 
payment, then it follows that the respondent was not in 
a position to entitle him to a sist in the present case. 
Farther, to grant the sist is contrary to the spirit and in- 
tention of the statute, which is, that after proper notice, 
litigation should be cut short. Another consequence of 
the view contended for would be, that the creditor's 
preference might be cut off by another coming forward 
and poinding. On the whole I am satisfied that it was 
not competent here to grant the sist, and that the 
appeal should be sustained. 
Appeal sustained accordingly. 

Party— T. B. Awdrsws, Writer, Kilmarnock— Agents. 



GLASGOW. ApriiM. 

1863. 
Spring Circuit, 1863. 

Judge — Lord Neaves. 
Hbr Majesty's Advocate — Thorns A.D. — Hamilton. 

AGAINST 

Jane M'Mahon or M'Graw— W. DingwaU-Fordyce. 

Theft— Breach op Trust — Indictment — Relevancy. — A panel 
was charged with Theft, in so far as, having received for temporary 
use from A. B. a shawl, the property, or in the lawful possession of 



382 CASES BEFORE THE HIGH COURT 

"/we*' *" B "' tie P™ 1 Btole the 8hawl ' ftbove UbeUed/ ( L ) Olgeetion 

M'Mahon tna * *° e crime charged was breach of trust not theft — repelled. 

or M'Graw. ^j.) Question, whether it was sufficient to charge the panel with 

Glasgow. the theft of the shawl c above libelled/ or whether it was not neces- 

A 1W& 2 * Bar y *° re P eat m tnat P* 1 * °* tne indictment that the shawl was the 

T , — property of A. B., but the indictment sustained in respect of the 
practice. 

Jane McMahon or MoGraw was charged with the 
crime of theft, especially when committed by a person 
who has been previously convicted of theft, — 

In bo par as, on the 1 1th day of December 1862, or on one or other 
of the days of that month, or of November immediately preceding, or 
of January immediately following, in or near the house or premises in 
or near Cambusnethan, in the parish of Cambusnethan, and shire of 
Lanark, then occupied by William M'Cabe, quarrier, then residing 
there, and now or lately residing in or near Stonehouse, in the parish 
of Stonehouse, and shire aforesaid, you the said Jane M'Mahon or 
M'Graw having received from Mary Gillespie or M'Cabe, wife of, and 
then and now or lately residing with, the said William M'Cabe, a 
printed or other short gown, and a tartan or other shawl, the property 
or in the lawful possession of the said Mary Gillespie or M'Cabe, or 
of the said William M'Cabe, in order that you might temporarily use 
and return them, or one or other of them, on the same day, or within 
other short space of time, to the said Mary Gillespie or M'Cabe, did, 
time above libelled, or on an occasion during the period between the 
11th and 16th days of December 1862, the occasion more particularly 
being to the prosecutor unknown, in or near the said house or premises, 
or elsewhere in the said county of Lanark to the prosecutor unknown, 
wickedly and feloniously, steal and theftuously away take the printed 
or other short gown above libelled : Likeas (2.), you the said Jane 
M'Mahon or M'Graw did, time above libelled, or on an occasion dur- 
ing the period above libelled, the occasion more particularly being to 
the prosecutor unknown, in or near the said house or premises, or in 
or near the pawn-office or premises in or near Brown Street, in or near 
Glasgow, then and now or lately occupied by John Clark, pawnbroker 
there, or elsewhere in the said county to the prosecutor unknown, 
wickedly and feloniously, steal and theftuously away take the tartan 
or other shawl above libelled. 

W, Dingwall-Foedtce, for the panel, objected that 
the case as libelled was one of breach of trust and not 
theft. 

Lobd Neayes, without calling for a reply, repelled 



1 



AND CIRCUIT COURTS OP JUSTICIARY. 883 

the objection, but doubted whether the statement as to N j^ K 
the property, or possession of the articles alleged to be M ^*£° n 
stolen, dispensed with the necessity for a substantive-^—— 
averment that when stolen they were the property or awum! 
in the possession of the same person, or of some other 
person known or unknown to the prosecutor, and he 
called on the Advocate-Depute to support the libel as 
laid in this particular. 

Thoms, for the prosecution, admitted the obligation 
under which he lay to libel substantively whose property 
or in whose possession the articles alleged to have been 
stolen were at the time of the alleged theft by the 
panel, but contended that the words ' above libelled/ 
as applied to each article when the theft was alleged, 
had been in practice recognised as tantamount to a re- 
petition of the allegation as to the property and posses- 
sion previously made when the article was mentioned. 
It was for this reason that € aforesaid f or ' above-men- 
1 tioned ' was not used, but ' above libelled/ as the 
latter embraced all that had been libelled as to the 
article with which it was connected. 

Lord Neaves said that if it could be shewn by pro- 
duction of precedents that this distinction as to 'above 
'libelled 9 had been recognised in practice the doubts 
would be removed, and he would be prepared to hold 
libel as relevant. To enable this to be done he would 
continue the case. 

The Advocate-Depute next day called the case, and 
produced a number of indictments at preceding Circuits 
at Glasgow, where ' above-libelled ' was used as in this 
indictment. 

Lord Neaves then expressed himself satisfied on the 
point, and held the libel as laid relevant, and remitted 
it to an Assize. 

After trial the case was found not proven, and the 
panel was dismissed from the bar. 



384 CASES BEFORE THE HIGH COURT 

Her Majesty's Advocate — Thorns A.D. — Hamilton, 

AGAINST 

John Brtson and Others. — Mair — Cowan — W. Maclaren— 
Bannatyne — Crawford. 

Stodthrief — Theft — Aggravations — Indictment — Relevanct— 
Opinion of Lord Neaves that ( habit and repute,' and previous con- 
viction of theft cannot be relevantly charged as aggravations of a 
charge of stouthrief. 

No. 72. The indictment in this case charged the panels with 

BryLTand the crime of c Stouthrief, especially when committed by a 

Qther8 ' ' person who is habit and repute a thief, and who has 

ApnS°32. € been previously convicted of theft/ 

1868, Lord Neaves before calling on the panels to plead 



stoiuhnef, ag j ce j fhQ prosecutor for any authority for libelling 
stouthrief with any aggravations. 

The Advocate-Depute referred the Court to the 
cases of John Smith, Ayr, October 2, 1860, Irvine, 
vol. iv. p. 50, note ; and William Thompson, Glasgow, 
April 23, 1861, Irvine, vol. iv. p. 47, as necessarily de- 
ciding the competency of the crime as here laid with 
aggravation. 

Lord Neaves held stouthrief to be in the same 
category with robbery, which admittedly could not be 
charged with these aggravations, and he held the point 
not to be foreclosed or decided by the authorities 
referred to. His own opinion was against the compe- 
tency of charging any such aggravation. 

Thereupon the Advocate- Depute asked leave to de- 
part from the aggravations of stouthrief charged in the 
indictment, and this having been granted the case went 
to trial. 



AND CIRCUIT COURTS OP JUSTICIARY. 385 

Her Majesty's Advocate. — Thorns A.D. 

AGAINST 

Thomas Phillips. — Millar. 

Culpable Homicide — Indictment — Alternative Charge — Rele- 
vancy. — Objection sustained to the relevancy of an alternative 
charge in an indictment for culpable homicide. 

Thomas Phillips, Quartermaster or Seaman on board No. 73. 
Her Majesty's Ship Hogue, was charged with Culpable PhSiiJL 

Homicide, Glasgow. 

April 23. 
1863 
In so far as, on the 15th day of January 1863, or on one or other — 

of the days of that month, or of December immediately preceding, or |P l, ? i K 8 
of February immediately following, on board the said ship ' Hogue, ' 
then and now or lately lying in the Firth or River of Clyde, at that 
part thereof known as the Tail of the Bank, and off or opposite or near 
to the town of Greenock, you the said Thomas Phillips did, wickedly 
and feloniously, attack and assault the now deceased Alexander Cun- 
ningham, then a seaman on board the said ship, and did, with a sword or 
cutlass, stab the said Alexander Cunningham on or near the left groin, 
[or did culpably and recklessly use a sword or cutlass], and the said 
Alexander Cunningham was cut, or the said Alexander Cunningham 
was otherwise injured, in consequence of which he died on or about 
the 23d day of January 1863, and the said Alexander Cunningham 
was thus culpably killed by you the said Thomas Phillips. 

Millar, for the panel, objected to the relevancy of 
the indictment in so far as the alternative charge (with- 
in brackets above) was concerned. It was not clear 
whether it was meant to be read along with the first, 
and as supporting it, or as a second charge. Assuming 
it to be the latter, it was not enough to say generally 
that the use of a weapon was reckless and culpable, the 
particular way in which it was used must be set forth. 
There was no connection stated between the act of the 
accused and the wounding of the deceased. 

Thoms, for the prosecution, admitted that the second 
alternative was a second charge, and contended that the 
only element requiring to be specified was the culpa- 

VOL. iv. 2 B 



386 GASES BEFORE THE HIGH COURT 

bility and recklessne 
Philips, sufficiently set forth. 



No. 73. bility and recklessness of the panel, and that this was 



GiMgow. Lord Neaves. — I am clearly of opinion that the 
1863. ' libelling of this alternative is not relevant. It is an 
caipabie essential and fundamental requirement in all charges 
that each alternative should be distinct and substantive, 
so as to be capable of standing alone if the rest is struck 
out. As I understand this indictment, and as it has 
now been explained, there are two alternatives in this 
minor proposition. I do not fully appreciate the 
libelling of this first alternative, which looks more like 
a charge of murder, though no objection is stated to it. 
As to the second alternative, I cannot say that there is a 
relevant specification. To say that the use of the 
weapon was culpable and reckless is to give no state- 
ment as to the modus of the use. These are qualities of 
the act. They are stated chiefly to give the act of the 
accused the quality necessary to make it a crime. What 
did this man do ? He is said to have used a sword — 
it is not even said to have been a drawn sword — and 
there are innumerable ways of using a sword. He is 
not said to have been brandishing the sword in the 
vicinity of Cunningham. It is not even said where it 
was done, whether in a room in the ship, or when they 
were together on the masthead, or in the forecastle, but 
merely that it was on board a ship. And it is merely 
said that the accused was using a sword — in some way 
or other. It is only said that one man used a sword, 
and that another man came against or upon it. Where he 
came from, or how he came, whether voluntarily or ac- 
cidently, is not said. It is further said that he was 
thereby stabbed ; but how, or by whom, whether he 
stabbed himself, or was stabbed by another, does not 
appear. The word ' thereby ' is not sufficient to connect 
the stabbing with the use of the weapon ; it connects 
more with the coming against the weapon. This is alto- 
gether too vague and unsatisfactory ; and no case has 
been cited to support it. The charge could not have 



AND CIRCUIT COURTS OP JUSTICIARY. 387 

stood alone, or if so it cannot be sustained as an alter- *?*• 7 *« 

7 Thomas 

native. The case of Temple Annesley, Dec. 27, 1831, Phillips. 
Bell's Notes to Hume, p. 76, is remarkably distinguished J'JJfjJ 
from the present in the matter of specification ; for in 1863. 
that case the major proposition was more specific than £*&£ 
the minor is here. There is no indication where the 
danger as a natural consequence arose. It is merely 
said that Cunningham came upon the sword. Had the 
accused been brandishing it or flourishing it in the face 
of the deceased it would have been different 

The objection was accordingly sustained, and the 
second alternative struck out. The relevancy of the 
indictment in other respects was sustained, and the 
case went to trial. 

It appeared from the evidence that the accused hav- 
ing playfully struck the deceased with the flat side of 
the sword, the latter unexpectedly turned round coming 
against the point of the sword, and receiving the 
wound. On which the Advocate-Depute withdrew the 
charge, and the panel was found not guilty, and dis- 
missed from the bar. 



Heb Majesty's Advocate — Thorns A.D. 

AGAINST 

William and Catherine Inglis — Scott — Black. 

Fraudulent Concealment op Property— Perjury — Fraudulent 
Bankruptcy— Statutory Oath in Sequestration — Indictment 
—Relevancy. — Objections sustained to the relevancy of an indict- 
ment charging, (1.), Fraudulent concealment of property by a person 
intending to apply for sequestration ; (2.) Perjury, in respect that 
the bankrupt did not, in the statutory oath, make a full disclosure 
of his affairs, it not being set forth that this defect referred to the 
state of his affairs at the time of emitting the oath ; (3.), Fraudu- 
lent bankruptcy committed by the panels ' while acting in the pre- 



388 CASES BEFORE THE HIGH COURT 

No. 74. The first crime charged in the major proposition of 

and cathe- the indictment was the Wicked and Felonious Conceal- 

De Dgw. men ^ putting away, or disposal, for the purpose of 

April 23! defrauding creditors of the property or effects [of a per- 

- — --j — son intending to apply for and obtain sequestration of his 

Conceal- estates, on the false and fraudulent pretence of his being 

pj^eity, insolvent or bankrupt, or] of a person insolvent, or on 

Ac * the eve of insolvency, or in contemplation of insolvency 

or bankruptcy. 

Counsel for the panels objected to the relevancy of 
the words within brackets, the objection was sustained, 
and these words were struck out. 

The panel, William Inglis, was charged, inter alia, 
with perjury, and it was libelled in the minor that his 
estates had been sequestrated, and that he had emitted 
the statutory oath before the Sheriff-substitute of Ren- 
frewshire, which oath was then quoted ; in the oath the 
panel deponed, inter alia, that the state of his affairs 
subscribed by him as relative to his oath, contained a 
full and true account of all his estate and effects heritable 
and moveable. The indictment libelled that the panel 
had subscribed a state of affairs as relative to the oath 
which € did not contain a full and true account, to the 
' best of your knowledge and belief, of all your estate 
' and effects, heritable and moveable, real and personal, 
' wherever situated, and that you the said William Inglis 
£ had not made a full disclosure of every particular rela- 
1 ting to your affairs/ 

The Court disallowed this branch of the indictment, 
because it was not sufficient to say that the state of 
affairs did not contain a full account of the bankrupt's 
whole effects. It was necessary to libel that the state 
of affairs did not contain a full account of the estate and 
effects of the bankrupt at the time the oath was emitted. 
The last charge in the minor proposition was, ' Iike- 
' as you the said William Inglis, by your whole actings 
' in the premises as above libelled, or part thereof, have 
' committed and are guilty of fraudulent bankruptcy 



AND CIRCUIT COURTS OP JUSTICIARY. 380 

' and you have thus acted as, and you are, a fraudulent 
' bankrupt.' 

This also was objected to for the panel, and the objec- 
tion was sustained. 1 



Her Majesty's Advocate — Thorns A.D. 

AGAINST 

William Hastie — W. M. Thomson. 

Perjury — Sequestration — Sheriff- Substitute — Evidence, Au- 
thentication of. — Circumstances in which the jury acquitted a 
panel charged with perjury by giving false evidence in his exami- 
nation on oath in the sequestration of a bankrupt, the Sheriff- Sub- 
stitute who took the examination, having been absent during part 
of the panel's evidence. 

The panel was charged with perjury, in respect of the No. 75 
falsehood of the evidence emitted by him when exa- hmSb? 



mined on oath before a Sheriff- Substitute in the course Glasgow, 
of the sequestration of a bankrupt. In the course of ?s63. ' 
the trial, it was proved that the Sheriff-Substitute had Perjury, 
not been present during the whole of the panel's exa- 
mination, and that he had been absent when a consi- 
derable part of the panel's evidence had been read over 
to him before signing it. 

Thomson, for the panel, then moved the Court to 
withdraw the case from the jury, because theBankruptcy 
Act required the presence of the Sheriff during the 
examination of a witness, and there was therefore no 
statutorv oath before the Court. 

Lord Neaves sent the case to the jury, directing them 
that it was for them to consider whether it was suffi- 
ciently certain that the portions of the oath said to be 

1 For farther proceedings against these panels, see below, of date June 
29, 1863. 



890 CASES BEFORE THE HIGH COURT 

No. 75. false had been recorded exactly as emitted by the panel. 
Hutie. The presence of the Sheriff afforded the statutory 



guarantee that the record of the oath expressed the 
1863. ' exact meaning of the witness. Here that safeguard was 
Perjury, wanting, and it might be that the person who took 
down the oath had not precisely appreciated the mean- 
ing of the witness. 

The jury acquitted the panel. 



Judges — Lords Neaves and Jerviswoode. 
William Sinclair, Appellant — Lomond. 

AGAINST 

Emma. Rosa, Respondent — APLean. 

Appeal — Competency — Sheriff Court —Decree — Summons — In- 
stance. — Objection to the competency of an appeal to the Circuit 
Court from a Sheriff's Small Debt Court, on the ground that neither 
the decree appended to the original summons, nor any certified 
copy thereof was produced — repelled in respect that the Sheriff 
Small Debt Court Book contained the decree of the Court. 

2. Held that an informality in the statement of the account appended 
to a small debt summons did not vitiate the instance. 

No# 76# Tms was an appeal to the Circuit Court of Justiciary 
SSlt from the Sheriflf Small Debt Court of Lanarkshire. It 
oiMgow. was objected for the respondent, that the appeal was 
A Tm*?* incompetent on the ground of no process, in respect that 
Appeal, neither the decree in the inferior court, nor a certified 
copy thereof, had been lodged with the clerk, — Small 
Debt Act, sect. 13, Baxter v. Kennedy, Perth, Sept. 11, 
1861, Irvine, vol. iv. p. 84. Upon these authorities it 
was maintained, that the only decree which the Court 
could look at, was that appended to the original sum- 
mons, or a certified copy thereof ; and that the Sheriff 
Court book (which had been produced), was a mere 
memorandum of the judgment. The test of this was, 



AND CIRCUIT COURTS OF JUSTICIARY. 39 1 

that no diligence oould proceed upon any other decree £**7?* 
than that appended to the original summons, which ».Ro«. 



April 25. 



could not be considered in any sense an extract, as there 

was no provision for issuing a second decree in the event M )8*£~ 

of the loss of the original one. AppaL 

Answered for the appellant. — The 13th section of the 
Act only provides for an extract of the decree being 
issued by the clerk. The decree itself was contained in 
the book kept in the Sheriff Court, in terms of the 17th 
section. This was borne out by other provisions of the 
statute, and decree being in favour of the respondent, 
it was not in the power of the appellant to have ex- 
tracted it. Moreover, the appeal operated as a sist, and 
the Sheriff Clerk could not issue extract. The appeal 
could be taken in open court when no decree other than 
that contained in the book had been written out. The 
book itself was now in the hands of the Circuit Clerk. 

The Court held, that the decree was contained in the 
Sheriff Court book, which was the best evidence of it 
that could be produced. It was the only thing authen- 
ticated by the Sheriff. 

On the merits the appellant objected to the decree, 
in respect that while the summons bore to proceed 
against him as an individual (he being therein designed 
as residing in Glasgow), the tenor of the appended ac- 
count showed that the action was in reality for a debt 
due to the Royal Liver Friendly Society of which he 
was secretary, but for whose debts he was not personally 
liable. Being a debt due to the society, the Sheriff's 
jurisdiction was excluded by the society's rules, which 
provides for extrajudicial reference in cases of dispute 
between the members and the society. 

The respondent submitted that the Act and rules did 
not apply, as the action was against the appellant per- 
sonally. The account was to be read as disclosing a 
personal claim, although it had been badly stated. 

The Court held that the objection went to the rele- 
vancy and not to the competency of the action ; and 



392 CASES BEFORE THE HIGH COURT 

No. 7e. there was no appeal under the act on a question of rele- 
uRosa. vancy. The account might be informally stated, but it 



Glasgow, would not do to go into such questions in every small 
1863. " debt case. The decree was truly in terms of the sum- 
AppeaL mons, and being so, the Friendly Societies' Act did not 
apply. 

J. M. Robertson, Writer, Glasgow — J. M'AllutjeRj Writer, Glasgow — Agents. 



WEST CIRCUIT. 

May*. STIRLING. 

1863. 

Judges — Lords Neaves and'Jerviswoode. 
Heb Majesty's* Advocate. — Thorns A.D. 

AGAINST 

Charles Buchan. — A. B. Shand. 

Culpable Homicide — Indictment — Relevancy. — Objection sus- 
tained to the relevancy of an Indictment which charged the panel, 
a druggist's apprentice, with the crime of culpable homicide, in so 
far as he had held himself out as a competent person to prescribe a 
proper medicine for a child, and had failed to inform himself by in- 
quiry at the parent, of the child's age and state of health or 
strength. 

No. 77. Charles Buchan, apprentice or shop-boy to a drug- 
£££j£ gist in Stirling, was indicted and accused, 



Stirling. t hat ALBEIT) by the laws of this and of every other well-governed 

1863.' realm, Culpable Homicide ; as also, Culpable Neglect of Duty by a 

Culpable person holding himself out as competent, and undertaking to prescribe 

Homicide, medicine for any of the lieges, whereby any person is bereaved of life, 

or so seriously injured as to hasten death, are crimes of an heinous 

nature and severely punishable : Yet true it is and of verity, that 

you the said Charles Buchan are guilty of the said crimes, or of one 

or other of them, actor or art and part : In so far as, you the said 

Charles Buchan being, on the date herinafter libelled, an apprentice 



AND CIRCUIT COURTS OF JUSTICIARY. ^393 

or shop-boy, in the employment of the said John Chalmers, and John No. 76. 

M'Allister, cabinetmaker, then and now or lately residing in or near Buchan. 

Baker Street, in or near Stirling, having, on the 19th day of Novem- Stirling, 

ber 1862, or on one or other of the days of that month, or of October May 5. 
immediately preceding, or of December immediately following, in or 



near the shop or premises in or near King Street, in or near Stirling, jj^^i. 
then and now or lately occupied by the said John Chalmers, applied 
to yon the said Charles Buchan for a mixture or medicine of a safe 
and proper description, and of a nature proper and suitable to be ad- 
ministered to a child, for the purpose of curing or alleviating the 
violence of a cough with which the child was afflicted, the said John 
McAllister intending the same to be administered to his son, the now 
deceased Andrew M'Allister, then residing with him, and who was 
then between two and three years of age or thereby, and who was 
then in a weak and delicate state of health, for the purpose of curing 
or alleviating the violence of a cough with which the said Andrew 
McAllister was then afflicted; and you the said Charles Buchan 
having then and there held yourself out to the said John M'Allister 
as competent, and undertaken to prescribe a mixture or medicine 
of a safe and proper description, and of a nature proper and suitable 
to be administered to a child, for the purpose of curing or alleviating 
the violence of a cough with which the said child was afflicted, and it 
being your duty previous and in order to your rightly prescribing a 
mixture or medicine of a safe and proper description, and of a nature 
proper and suitable to be administered to a child for the purpose fore- 
said, to inform yourself by inquiry at the said John M'Allister of the 
age and state of health or strength of the child for whom the quantity 
of mixture or medicine of the description and nature, and for the pur- 
pose foresaid, was required, or to enquire and inform jyourself as to one 
or other of these matters, you the said Charles Buchan did, time 
and place above libelled, wickedly, recklessly, ignorantly, and 
culpably, fail to inform yourself by inquiry at the saidJJohn M'Allister, 
or otherwise, or at least by sufficient enquiry at the said John 
M'Allister, or otherwise, as to the age and state of health or strength 
of the child for whom the quantity of a mixture or medicine of the de- 
scription and nature, and for the purpose foresaid, was required, or as 
to one or other of these matters ; and you did, then and there, wickedly, 
recklessly, ignorantly, and culpably, deliver and sell to the said John 
M'Allister one and a half ounces or other quantity of a cough mixture 
or other medicine, containing, with other ingredients, two or thereby 
drachms of a solution of morphia, and one ounce or thereby of parego- 
ric, or other preparation of opium, in every four ounces or thereby of 
the said mixture or medicine, the quantities of morphia aud opium 
mor« particularly being to the prosecutor unknown, the aforesaid 
solution of morphia and. preparation of opium being potent narcotic 
drugs bjr poisons, or the said mixture or medicine, containing other 



894 CASES BEFORE THE HIGH COURT 

c£j 7 ' dangerous or poisonous substance or substances to the prosecutor un- 

Bachan. known, the said quantity of cough mixture or other medicine so de- 

Stlriiog. livered or sold being put into a phial which the said John M'AUister 

Maj 5. had brought with him ; and you the said Charles Buchan did, then and 

there, wickedly, recklessly, ignorantly, and culpably, affix to the 



Homicide. P Q i*l in which the said cough mixture or other medicine was put by 
you as aforesaid, a printed label in the following or similar terms :— 
( Cough mixture. Two teaspoonfuls at bed-time and one three or 
( four times during the day in water when the cough is troublesome/ 
you intending, and thus prescribing, the said mixture or medicine to 
be given or administered in the quantities or doses specified in the 
the said label, as being the safe and proper quantities or doses of the 
said mixture or other medicine supplied by you as aforesaid, to be ad- 
ministered to the child for whom the mixture or medicine of the de- 
scription and nature, and for the purpose foresaid, was applied for by 
the said John McAllister, whereas the said quantities or doses were 
not only not safe and proper, but, on the contrary, were highly 
dangerous and injurious or fatal quantities or doses to be given or ad- 
ministered to a child of such tender years, and in such a weak and 
delicate state of health, as the child for whom the quantity of a mixture 
or medicine of the description and nature, and for the purpose foresaid, 
was applied for by the said John McAllister, and of whose age and 
state of health or strength you ought to have inquired and informed 
yourself as aforesaid; and the said John M ( Ailister, and Jane 
Drummond or McAllister, wife ofj and now or lately residing with, 
the said John McAllister, or one or other of them, having, time above 
libelled, in or near the house or premises in or near Baker Street, in 
or near Stirling, then and now or lately occupied by them, in pursu- 
ance of the foresaid directions and prescription contained on the said 
label, and affixed by you the said Charles Buchan to the said phial as 
aforesaid, and relying thereupon, administered to, or caused to be 
taken by, the said Andrew M ( Allister a teaspoonful or thereby of the 
said mixture or medicine diluted in two or three teaspoonfuls of water, 
the said Andrew M'Allister became immediately or soon afterwards ill, 
and died in a few hours thereafter, from the effects thereof; by all 
which, or part thereof, the said Andrew M ( AUister was culpably killed 
by you the said Charles Buchan, or was bereaved of life, or seriously 
injured and his death hastened, through culpable neglect on the part 
of you the said Charles Buchan. 

Shand, for the panel, objected to the relevancy of the 
indictment, arguing that the statement in the minor 
proposition did not bear out either of the charges in the 
major. The parenthetical statement as to the child's 
' weak and delicate state of health/ was not any part of 



AND CIRCUIT COURTS OF JUSTICIARY. 395 

John McAllister b application for the cough mixture, n*77. 
bat was made the gravamen of the charge that the Bochan. 



medicine was given for a child in that condition. The Stirling, 
failure to enquire into that circumstance was an article ism. ' 



of dittay without any precedent. Then the panel was Cuip*Me 
charged not with giving an unsuitable medicine for a oum 
child afflicted with cough, but for a child 'in the 
' weak and delicate state of health' of this child. The 
only cases of this description reported were Robert 
Henderson and William Law son } High Court, June IS, 
1842, Broun, vol. i. p. 360 ; Edmund Ferdinand Wheat- 
ley, Glasgow, May 6, 1853, Irvine, vol. i. p. 225, and 
there the medicine given was libelled as being destruc- 
tive to health. There could be no good charge without 
that, Elizabeth Hamilton, High Court, Nov. 9, 1857, 
Irvine, vol. ii. p. 738 ; William Hardie, Stirling, April 
10, 1847, Arkley, p. 247 ; M'Manimy andHiggans, High 
Court, June 28, 1847, Arkley, p. 321 ; Alexander Dick- 
son, Jedburgh, Sept. 16, 1847, Arkley, p. 352 ; Robert 
Young, High Court, May 20, 1839, Swinton, vol. ii. 
p. 376. 

Thoms, for the prosecution, answered — The crime 
consisted in the panel undertaking to prescribe, and in 
failing to do what that duty involved, viz. enquiring 
into the age and condition of the patient. It was not 
the duty of an apothecary, or of his assistant, to pre- 
scribe, but if he undertook that duty, he was liable for 
the consequences of improperly discharging it. Persons 
entrusted with the dispensation of drugs and poisons 
were responsible if they did not take all proper precau- 
tion in the directions as to their use. This was a differ- 
ent case from those cited, for if the panel held himself 
out, as he is stated in the indictment to have done, he 
was to be presumed, ex lege, to be responsible as there 
set forth. It might be sufficient in defence to prove a 
specific contract to prescribe, the father well knowing 
the panel's inexperience, and taking the risk of all the 



396 CASES BEFORE THE HIGH COURT 

No . 77 consequences, but that did not affect the relevancy of 
SS^thechaigeaBlaid. 

Stirling. Lord Neaves. — I think this indictment is not rele- 
*im.' v &nt. I do not regard favourably these alternative in- 
Culpable dictments ; but it might be something short of culpable 
Homicide, homicide, and yet a culpable act, and therefore it may 
sometimes be expedient to charge both crimes. There 
is only one narrative. The commencement of this story 
is, the application of the parent at the shop of Mr. 
Chalmers for a mixture of a safe and proper description, 
and of a nature proper to be administered to a child, for 
the purpose of curing or alleviating the violence of a 
cough with which the child was afflicted. Then fol- 
lows what John McAllister intended to do with the 
medicine when obtained [reads] ; and it is the nature 
of the indictment that no such facts are communicated 
by the parent. These two things are what passed. 
McAllister asks for a medicine, and the panel holds him- 
self out as a person competent to prescribe, &c. 

I should be sorry if what I say were to raise the belief 
that persons in charge of apothecaries' shops, or of other 
shops where drugs are sold, were to be at liberty to pre- 
scribe medicines. If a man undertakes to supply drugs, 
or to perform operations, and injury comes by the want 
of knowledge or skill with which he works he will be 
liable, and if this indictment had said that the panel 
held himself out as a medical man, there might have 
been a good ground for charge against him. It is not 
alleged that the panel held himself out erroneously or 
incompetently. The medicine is not said to be unfit 
for a child, it is only said to be unfit for a child with a 
cough as McAllister's child was. It was the age and the 
particular state in which the child was that are said to 
have rendered the medicine unsuitable for it. Nothing 
is said of his furnishing a wrong or mistaken medicine. 
But it is said, it being your duty [reads]. It will not do 
to allege a thing to be the duty of a particular indivi- 
dual. The duty must be such as reasonably springs from 



AND CIRCUIT COURTS OP JUSTICIARY. 397 

the relation of the persons to one another. If it be a §jJ2i 
druggist's duty to ascertain the age and state of health, Buchan. 
I doubt if any enquiry would be satisfactory, short of ^"J* 
seeing with his own eyes, and feeling with his own 1863. 
hands, the child's pulse, &c. It is the weak and delicate ^Jjjf^ 
state of the child that is alleged here, but if a druggist 
is to enquire into these in all cases, no medicine will be 
sold. It is a delicate thing to say that the druggist 
must know how much opium would destroy that parti- 
cular child. But then there are farther difficulties. 
What is meant by ignorandy fail to enquire? Does it 
mean that he was so ignorant that if he had enquired 
it would have done him no good ? The prosecutor 
should have said rather that his ignorance should have 
prevented him from prescribing as he did. 

What I desiderate is, a clear distinction between a 
competent man who neglects some duty, and an ignorant 
man who assumes to do what he is incapable of doing. 
The assumption of duty on the part of an incompetent 
man is one thing, and the neglect of duty on the part 
of a competent man is quite a different thing. 

It would be difficult to draw a line that would point 
out the delict of this boy. It is the neglect to enquire 
that forms the gravamen of the charge, but if this in- 
dictment is sustained, how are we to say to what ex- 
tent of enquiry is necessary on the part of a boy situated 
as this boy was ? It may be said that there has not been 
sufficient enquiry, or even that there has not been cor- 
rect enquiry, but that would not imply the culpability 
libelled. 

Lord Jerviswoode concurred. 

The objection to the relevancy was accordingly sus- 
tained, and the panel dismissed from the Bar. 



398 CASES BEFOBE THE HIGH COURT 

HIGH COU RT. 
"Sfif- Pre8Cnt ' 

The Lord Justice-General, 

The Lord Justice-Clerk, 

Lords Cowan, Deas, Ardmillan, Neaves, and Jertiswoodb. 
[Full Bench,] 

Her Majesty's Advocate — Sol-Gen. Young — Crichton A.D. 

AGAINST 

Angus M'Kinnon — Cattanaeh. 

Theft — Appropriation — Guilty Knowledge — Indictment — Re- 
levancy. — A panel A. was charged with Theft, in so far as, having 
time and place libelled, found a pocket-book and bank notes that had 
been stolen from or dropped by B., he had wickedly and feloni- 
ously appropriated the same to his own uses, well knowing that the 
same were the property of B«, ( or at all. events that the same were 
( not the property of you the said' A. The libel found irrelevant, 
in respect that it did not sufficiently set forth guilty knowledge and 
appropriation on the part of the panel. 

*Ai«ui Angus M-Kinnon, a fisherman in Fort-William, was 
it'Kinnon. charged before the Spring Circuit Court at Inverness, 

H i£ c S rt wittl the crime of Theft :— 

1863. ' 
Theft, &c l N 80 par A8) on the 18th day of October 1862, or on one or other 
of the days of that month, or of September immediately preceding, 
or of November immediately following, James MacgilHvray, road- 
contractor, then and now or lately residing at Druimarben, in the 
parish of Kilmallie, and shire of Inverness, having, in or near the 
High Street of Fort- William, in the parish and shire aforesaid, or 
elsewhere in or near Fort- William to the prosecutor unknown, had 
stolen from his person, by some person or persons to the prosecutor 
unknown, or having dropped or loBt in or near the said High Street of 
Fort- William, or elsewhere in or near the said town of Fort- William 
to the prosecutor unknown, a pocket-book, containing forty-one pounds 
sterling or thereby in one-pound bank or banker's notes, the property 
or in lawful possession of the said James MacgilHvray, you the said 
Angus M ( Einnon did, time and place above libelled, find the Baid 



AND CIRCUIT COURTS OF JUSTICIARY, 399 

pocket-book and money, or part thereof, and did, then and there, or No. 78. 
in or near the house situated in High Street of Fort- William then M-Kmnon. 
occupied by you the said Angus M'Kinnon, or at some other time and „. .„ . 
place to the prosecutor unknown, wickedly and feloniously, appropriate May 25. 
the same to your own uses and purposes, you well knowing that the 1863a 



same were the property of the said James Macgillivray, or at all events Th « f *» Ac. 
that the same were not the property of you the said Angus M ( Kinnon, 
and did, wickedly and feloniously, steal and theftuously away take the 
said pocket-book and money, or part thereof, the property or in the 
lawful possession of the said James Macgillivray. 

Lord Abdullah, the presiding Judge, certified the 
case to the High Court, in respect of an objection taken 
to the libel, that the guilty appropriation of the articles 
said to have been stolen was not sufficiently set forth. 

Cattanach, for the panel, argued — That the libel was 
irrelevant, in respect, (1.) That the first part of the 
narrative had reference to a completed act of theft, with 
which the panel was not alleged to have had any con- 
cern. The charge against him was only the finding and 
appropriation of the article, and it was incompetent to 
lead evidence of his connexion with or knowledge with 
that theft, and any attempt to prove his subsequent 
connexion with the appropriation, would be an attempt 
to prove the crime of reset, which was not charged in 
the indictment. Farther, there must have been a pre- 
vious dropping by the thief, but that fact was not libel- 
led, nor the time and place of its occurrence, which put 
the panel at a disadvantage in his defence. — Hume, 
vol. ii. p. 187, 190 ; Alison, vol. ii. p. 275. 

(2.) The guilty knowledge of the panel as to the 
ownership of the article was not sufficiently set forth. 
It was necessary to libel explicitly the panel's know- 
ledge of the owner's identity. — Stair, i. 7, 2, and ii. 1, 
20 ; Bankton, i. 8, 3, 6 ; cases of John Smith, High 
Court, March 12, 1838, Swinton, vol. ii. p. 28 ; Jane 
Pye, Perth, October 3, 1838, Swinton, vol, ii. p. 187 ; 
Thomas Scott, High Court, November 11, 1853, Irvine, 
vol. i. p. 305 ; Mary Reid and others, High Court, 
March 3, 1856, Irvine, vol. ii. p. 393. 



400 CASES BEFORE THE HIGH COURT 

No. 78. The Solicitor-General, for the prosecution, con- 

Angus 

M'Kinnon. tended that the indictment was relevant, and that it 

High court, was not necessary for the prosecutor, who charges theft, 

1863. ' to set forth any facts or circumstances from which, upon 

Theft, &c. the proof of them, he means to ask the jury to convict 

the accused. It was for the prosecutor to prove all 

the facts and circumstances in support of the charge 

without being under the necessity of setting forth any 

modus operandi in the libel at all. It was generally a 

true principle that it was not necessary, to constitute 

the crime of theft, that the prisoner should know the 

owner of the property stolen ; and in this case he did 

not consider that the prosecutor was bound to set forth 

that the prisoner knew who the real owner was, that 

being merely a fact going to prove the guilty mind, and 

which would be brought out in evidence. 

The Lord Justice-Clerk. — At one time the law of 
Scotland held, that the finding and appropriation of 
moveable property under any circumstances did not 
constitute theft, but that rule has been modified by the 
decision of this Court in the cases of Smith and oiPye, 
so that, under certain circumstances, the finding and 
appropriation of moveable property does amount to 
theft. Further than that the old rule has not been re- 
laxed. I think, that in this case, we are asked by the 
prosecutor to apply the principle of the judgments in 
Smith and Pye to a totally different case. The case of 
Smith was one of appropriation to the finder's own 
uses and purposes, he knowing who the owner was ; and 
the same in the case of Pye. They were both exactly 
in the same position, and it is not unimportant to ob- 
serve that in the case of Smith, where the relevancy of 
such a charge was first sustained, and which was the 
only case in which there was any argument, some of 
the Judges in the majority of the Court, so express 
their opinion as to lead to the inference that but for 
the fact that the owner of the money was known to 
the panel, and known to him at the time — or almost 



AND CIRCUIT C0URT8 OF JUSTICIARY. 401 

at the time— when he first took the property, they ^ 78 - 
would not have held the indictment relevant. Whether M»Kinn<m . 
or not this was a right modification of our old law 1 5g| l( 5? rt 
I give no opinion at present, but it is clear to me 1863.' 
that this is all that we have authority for. Theft, Ac. 

This indictment is framed so as to charge that 
particular kind of theft which consists in finding and 
appropriation, and I do not think it can relevantly be 
libelled in the way in which it is here libelled. I do 
not say that it might not be possible for the prosecutor 
to make a relevant charge or libel as for ordinary theft 
in such a case as the present, but it would not be safe 
for him to do so, because the amotio and the felonious in- 
tent are charged as taking place at one and the same time, 
and under such a libel he would run the risk of its being 
proved that these elements did not concur, but that the 
taking was innocent, and the felonious appropriation 
was in consequence of an after purpose. There is, there- 
fore, a necessity for libelling such cases in a different 
way from that in which the prosecutor may libel an 
ordinary case of theft. 

A case of finding of course pre-supposes loss, because 
finding means the finding of something which is out of 
the possession of the owner and in nobody's possession 
at the time, and the stealing of that is a very different 
act from the stealing of a piece of property which is in 
some one's possession, and as to which you must libel 
where it was, and from whose possession removed. 
In a case of finding it is indispensable that the prose- 
cutor should say first who lost the thing — whether 
he must set forth in what manner is another question 
—and further, he must set forth that at some time 
and place the panel found the thing, and then or at 
some other time appropriated it to himself in such 
a way as to amount to a crime in the eye of the law, 
that is, lucri faciendi gratia at the expense of the true 
owner. 

The charge as set forth in this indictment does not 

vol.iv- 2 c 



402 CASES BEFORE THE HIGH COURT 

No. 78. geem to me to be borne out by the authority of any pre- 
M'Kinnon. vious case, or by any correct or intelligible principle of 
HighCourt. our criminal law. For example, a person finds a thing 
1863. ' which is of no great value, he cannot find the owner, and 
Theft, &c after a considerable period, and having discharged every 
obligation incumbent on him he appropriates it — what- 
ever may be said of the transaction in a purely honour- 
able point of view, can it be said that that is theft ? In 
dealing with this class of cases we must be very careful, 
and so draw the line as clearly to distinguish them, even 
in a moral point of view, from ordinary cases of theftu- 
ous away taking. 

In this libel let us take one alternative, that this 
pocket-book having been lost or dropped in the month 
of October on the street of Fort- William, and having 
been found by the panel, he did then and there on or 
near said street, wickedly appropriate it not know- 
ing whose property it was. I say this is the meaning 
of the last alternative, not because the words ' at all 
' events ' are precisely equivalent to * not knowing 
' whose property it was ;' and though, therefore, had 
this charge stood alone and not as an alternative, it 
might have been possible to put another construc- 
tion on it, yet here the alternative is so framed, that I can 
give it no other meaning than that M'Gillivray was 
the true owner, and if the panel did not know that 
M'Gillivray was the owner, then he did not know who 
the true owner was. 

It appears to me that this charge might cover the 
case of a thing being found on the 18th October, and 
having remained in his possession innocently for a long 
time, while enquiry was being made concerning the 
owner, the accused being all that time quite willing to 
restore the article, but that sometime before May 1863, 
he at last appropriates it to his own use. This clearly 
does not come up to the crime of thefL It may be very 
questionable in point of honour, but it is not that griev- 
ous violation of moral right which is implied in theft. 



AND CIRCUIT COURTS OF JUSTICIARY. 403 

Such is the case before us, and I should be sorry to pre- No 78. 
judge any other which may arise under other circumstan- M'Kinnon. 
ces with other more specific words, or greater precision in Hijh Court 
the libelling of the time between the taking and the ap- im. ' 
propriation, or as to the time of the guilty knowledge on Theft, ** 
the part of the panel ; but for the present I must take 
these things exactly as I find them in this indictment, 
and I am of opinion that this charge is irrelevant. 

Lord Cowan. — I concur in the opinion which has 
just been delivered. As now the only Judge on the 
bench who took part in the decision in the case of Reid, 
I think it right to state, that I did not at the time, and 
do not now, view that case as having been decided on the 
footing of the articles having been found and afterwards 
feloniously appropriated ; but this charge was stated, and 
dealt with on an averment of an alternative mode of 
theft. The case of Reid, therefore, has no application ; 
and the only cases which touch it, even in appearance, 
are the cases of Smith and Pye. The view I take of 
such cases as the present is this : — It appears to me that 
it requires a very different case to be set forth from 
what would suffice in an ordinary charge of theft. The 
finding of the articles may have been at the time a per- 
fectly innocent act, and it is therefore indispensable that 
the libel proceed to state when and where, and how this 
innocent possession (as we must assume it to be) came to 
an end. Thus the prosecutor who has to deal with 
possession that may have been innocent at first, must, 
in the minor proposition of his libel, negative the pre- 
sumption of innocence. It is because this has not been 
done here — because the prosecutor has not negatived 
the possibility of innocence which arises from the first 
part of the statement in the minor — that I am for hold- 
ing this libel irrelevant. Take, for example, the words 
on which so much observation has been made, ' you 
' knowing the same to be the property of the true 
' owner, or at least that the same was not your pro- 
' perty.' Now this does not negative innocent posses- 



404 CASES BEFORE THE HIGH COURT 

No. 78. gion^ inasmuch as every finder knows that what he finds 
M'Kinnop. is not his own, and his merely continuing in that state 
Hi^h court of mind, does not negative his innocence in taking and 
1863. ' keeping possession of what might have been dereUcf. 
Theft, &c Had the alternative in the libel even been, that the 
thing found was known to the prisoner to be ' at ail 
' events the property of some person to you unknown/ 
that would have been more satisfactory, because then 
the prosecutor must have satisfied the jury that the 
panel knew the subject to belong to some one whose 
property had been feloniously taken as libelled. Fur* 
ther, this libel is objectionable on another ground. The 
prosecutor takes an alternative as regards the time of 
the alleged felonious appropriation, which might be ex- 
tended so as to cover appropriation, even at an interval 
of some years after the first finding, which is certainly 
objectionable. On the whole, I have no difficulty in 
holding this libel to be irrelevant. 

Lord ArdmilTiAn.— When this objection was first 
stated to me at Inverness, I was disposed to sustain it ; 
but as the point was important and novel, I did not 
think it quite right to do so, sitting alone on Circuit ; 
but after hearing the very able and ingenious argument 
for the Crown, I am still of opinion that the objection 
is good. 

Before the case of Smithy it had been generally sup- 
posed, that in order to found a relevant charge of theft, 
there must be a felonious intention at the first obtain- 
ing of the thing, but that case decided that the criminal 
appropriation may follow upon an innocent taking, and 
may take place after an interval of time, and that lost 
goods may be stolen by the finder. 

But in that case it was specially charged, that the 
owner was known to the finder, and I do not think that 
any one of the Judges who decided the case of Smith, 
would have decided it the same way, if it had been al- 
leged in the indictment that the owner was not known to 
the panel. The Lord Justice-General Boyle was on- 



AND CIRCUIT COURTS OF JUSTICIARY. 405 

doubtedly of that opinion, and so was Lord Moncreiff, JJ°* *J* 
and also Lord Cockburn, whose opinion is particularly M'Kinnon. 
clear and pointed. The present case as now presented H X hC 2? rU 
to us is different, for we have to consider here whether i86s. ~ 
it is theft if the finder does not know the owner. The Theft, *c 
appropriating of an article found, knowing it is not my 
own, and knowing that it must belong to some one else, 
may, indeed, be theft, but it does not necessarily amount 
to that crime. It may be that the finder conceals or 
defaces the article, or denies the possession of it, or with- 
holds it when claimed, or gives a false description of it, 
or flies from the place ; or it may be that he does none 
of these things, but simply retains it. .These or similar 
circumstances may in particular cases give such a colour 
to the act of appropriation of a found article, as to make 
it amount to theft, even though the finder does not 
know the owner. But this libel which alleges only that 
the prisoner found certain property and appropriated it, 
not knowing whose it was, does not seem to me to be 
relevant. 

The Solicitor-General has contended, that even the 
finding need not be set forth, because it is sufficient for 
the prosecutor to say that the prisoner stole the article. 
To this ingenious argument on the part of the Crown, 
there are, I think, two answers, 1st, That an indictment 
in such general terms, where the first possession was 
innocent, is not according to our practice, and such an 
indictment would not disclose the true case, and would 
not give fair information to the panel ; and, 2dly, That 
if an indictment were framed as he proposes, the ques- 
tion would only be shifted. In that case, it could not 
arise on the relevancy at all, the prosecutor not stating 
the fact of finding, but it would arise on the evidence, 
and it would depend on the attendant circumstances. 
It would not be necessarily theft. 

If the finder knew the owner, yet appropriated the 
article, that is theft, unless he can clear himself by satis- 
factory explanation. If the finder did not know the 



406 CASES BBFORB THE HIGH COURT 

No. 78. owner, it may be theft, but not necessarily, and the 

M'Kinnon. prosecutor must set forth facts and circumstances to give 

High Conn, to the act of continuing a possession originally innocent, 

1863. ' the character of theft. Therefore I think that this in- 

Theft,&c. dictment is not relevant. 

Lord Deas. — The question we have now to deal with 
is not of the general kind submitted in argument for 
the panel — under what circumstances shall the finder 
of lost property be held guilty of theft ? but whether 
this particular indictment relevantly libels theft ? In my 
opinion it does not. 

The Solicitor-General rested his argument for the 
Crown entirely on the proposition that, in an indict- 
ment of this kind, it is quite unnecessary to set forth 
any thing whatever about the knowledge of the panel 
as to the property or previous possession of the article 
found, even to the extent of saying, (as is done in this 
indictment), that the panel knew it not to be his own 
property. The Solicitor-General contends that it is quite 
enough to libel the offence as you would libel an ordinary 
act of theft, — that is to say, to set forth that, at a time 
and place specified, or at some other time and place to 
the prosecutor unknown, the panel did wickedly and 
feloniously steal and theftuously away take the article 
or articles in question. I cannot assent to that propo- 
sition. We have no instance of such an indictment 
applicable to the case of an article found and theftuously 
appropriated. There have not been many such cases 
altogether. But in none of them which have been 
cited has the indictment been framed on the footing 
now contended for. In the case of Smith, in March 
1838, it was set forth that the panel knew the money 
and bill to be the property of a person named. In the 
case of Scott, in 1853, which related to a mail-bag and 
letters, the address of one of the letters was set forth in 
the indictment, and the whole circumstances libelled 
plainly implied knowledge on the part of the finder that 
the bag and its contents had been unintentionally 



AND CIRCUIT COURTS OF JUSTICIARY. 407 

dropped by some one in the employment of the Post **«• ?*• 
Office. In the two unreported Circuit cases cited, — the M'Kmdod. 
one at Inverary in Spring I860, and the other at Dum- HighCouit. 
fries in Spring 1858, — although the alternative here oh- ims. ' 
jected to was no doubt in the indictment still know- Tfae ^» * c - 
ledge was libelled, so that even these two cases are not 
precedents for the Solicitor-General's contention that no 
libelling whatever of knowledge is necessary. The case 
of Jean Pye in 1838, and the case of Mary Reid in 
1855, were cases of ordinary theft, libelled, (somewhat 
loosely it may be,) as committed from the pocket or 
person of a man then in company with the alleged 
thief, in circumstances implying the knowledge of the 
panel that the property belonged to that man. It is 
apparent that neither of these cases were meant to be 
libelled and tried as cases of articles found and appro- 
priated. The whole of such cases therefore which have 
hitherto occurred are instances of a practice hostile to 
the argument of the Crown, that such cases fall to be 
libelled in similar terms with ordinary thefts. Nor is 
this different from what we would expect. In cases of 
ordinary theft the possession is, from the first, a guilty 
possession. The charge is fully stated and explained 
by setting forth the time, the place, the nature of the 
article, and the fact that the panel did then and there 
wickedly and feloniously steal and theftuously away 
take that article, the property or in the lawful posses- 
sion of a person named. The theft there consists in the 
very act of taking possession. But wherever the origi- 
nal possession is innocent, or must be presumed to be 
innocent, it is proper and usual to state something to 
indicate the charge from an innocent to a guilty state 
of possession, which serves the double purpose of com- 
mitting the prosecutor to what he is to prove, and of 
informing the panel of how and on what ground it is 
that he, whose character and position may be very 
different from that of an ordinary thief, comes never- 
theless to be charged with theft. For instance, the 



408 CASES BEFORE THE HIOH COURT 

No. 78. cage pu t by the Solicitor- General of a man who hires a 

Angus * " 

M'Kinnon. horse for a particular journey, and in the course of the 
HjghCoart, j our ney forms the thefluous purpose of appropriating 
1863.' the horse, and consequently rides off with it, — the 
Theft, &a. practice uniformly is to set forth the contract of hiring 
under which possession was obtained, and the subse- 
quent appropriation in which the crime really consists : 
just as in the case of Smith and Wishart referred to at 
the bar, the nature of the employment of the panels as 
officers of the Bank, and how they came to get posses- 
sion of the money, with the fact of thefluous appropri- 
ation to their own uses and purposes, and the circum- 
stances generally, were set forth on the face of the in- 
dictment. A similar course ought to have been followed 
here. To take up money lying on the highway may be, 
and is presumed to be, an innocent act, and may even 
be a duty, with a view to its presentation to whomso- 
ever it may concern. The statement made here that 
the money was lost and found naturally points to an 
innocent finding. No doubt it is possible that the 
thefluous intention to appropriate may be coeval with 
the very act of seeing and lifting the money. But that 
is not to be presumed, and there ought to be some 
notice in the libel of what is alleged to have converted 
the possession presumed to be innocent into a guilty 
possession. If the finder did not steal nor commit any 
crime at all when he lifted the money, he ought to be 
told how it happens that he is charged with the crime 
of theft. The mere intention, or even the use of an 
article found, may not always infer theft. If a man 
finds an orange, keeps it till it becomes useless, and then 
cuts it, would that be theft ? Or suppose he finds a 
penknife, and while as yet no owner has been discovered 
he mends his pen, would that be a thefluous appropri- 
ation ? It is said the finder ought always to advertise 
the article. But suppose the value of what is found to 
be less than the necessary cost of advertising, the failure 
to advertise would not surely imply theft. Nor can the 



AND CIRCUIT COURTS OF JUSTICIARY. 409 

rule be absolute to lodge in the Police Office whatever No. 78. 

Angus 

is found, as enacted in some Police statutes ; for there M'Kinnon. 
may be no Police Office in the locality. The question High Court 
of theft, in the case of articles found, is always a ques- ms. ' 
tion of circumstances, and these circumstances ought to Theft, &e. 
be reasonably disclosed in the indictment. I do not 
say that it may not be theft to appropriate an article 
found at whatever distance of time after the finding of 
it. But either some knowledge which ought to have 
led to restoration of the article, or some conduct or cir- 
cumstances indicative of guilty purpose having been 
taken up, ought to be set forth. In the present case, 
accordingly, the libel is formed on the footing of this 
being necessary. But the necessity is assumed to be 
satisfied by simply stating that the panel knew the 
money not to be his own property. I do not think 
that is enough. In every case of finding an article lost 
by another, the finder must know the article not to be 
his own property. But every case of finding is not theft. 
The prosecutor must go farther and set forth something 
to have been known which implies guilt. If that be 
done I do not say that more lapse of time between the 
finding and appropriation, or the impracticability of as- 
certaining the precise time at which the guilty purpose 
was formed, will necessarily he fatal to the charge. 
But the mere fact here relied on, that the panel knew 
the money not to be his own, is a fact not incompatible 
with innocence, and I am therefore of opinion that the 
libel is irrelevant. 

Lord Neaves. — I am of the same opinion. The case 
of Smith, and that class of cases, decided that a finder 
may, under certain circumstances, be guilty of theft by 
appropriating to his own use the article found, but then 
the prosecutor must bring the finder within the circum- 
stances required. 

I agree with Lord Deas that it may be not only inno- 
cent but laudable to take found property and keep it ; 
it may be to protect it till the true owner is found ; and 
i 



410 CA8E8 BEFORE THE HIGH COURT 

^^J; I must see clearly set forth in the indictment the way 

M'Kinnon. j n w hi c h ^^jg possession, innocent and presumedly lawful 

H m*?2!?' at ^ rst > becomes afterwards wicked and felonious. I 

18ga - think the present charge cannot be supported either on 

Theft, *c principle or with reference to our practice. 

Lord Jervtswoode. — I agree in the opinion that this 
libel is not relevant. The prosecutor has a great privilege, 
because anything that constitutes a crime by the law of 
Scotland may be relevantly charged in the indictment ; 
but as a counterpart of this obligation he has the duty 
put on him, for the sake of the public and the accused, 
to set forth fairly what he means to prove. 

Now, if his case against the panel is tbat he feloni- 
ously appropriated, and thereby stole this thing, be 
must state on the face of his indictment facts which 
will satisfy the Court of the relevancy of the charge. 
And in a case like this where the possession may have 
been not merely not felonious but most laudable, I look 
in vain for such a clear and specific statement as can 
lead me to sustain the relevancy. 

The Lord Justice-General. — I agree with the 
opinions that have been delivered, both as to the result 
and the grounds of judgment. 

Looking to the matter which has last been made the 
subject of discussion it presents an abstract case which 
is not perhaps likely to be of frequent occurrence. The 
charges set forth in the alternative is, that at Fort- William 
a sum of money was dropped by the owner, or by some 
thief who had stolen it from him, and that the panel, 
not knowing who it belonged to, did, at the same time 
and place, appropriate it, and was thus guilty of theft. 

I know of no precedent for such a charge under such 
circumstances. Such an indictment might be made to 
apply to an innocent person who was in ignorance to 
whom the thing belonged, or that it was the property 
of anyone. Every man who finds a thing is pre- 
sumedly in ignorance of who it belongs to ; unless, in- 
deed, he finds a thing that he has himself lost ; and we 



AND CIRCUIT COURTS OF JUSTICIARY. 411 

have nothing here to show us how that innocent posses- No. 78. 
rion becomes an act of theft. Merely to use the words M'Kinnon. 
wickedly and feloniously will not do. I think there is HighCourt. 
a good deal in the observation of Lord Cowan that it is isw. ' 
not said even to have been the property of some one to Theft, &c 
the prosecutor unknown. The thing may have been 
some derelict, not necessarily thrown away, but some- 
thing which the owner has ceased to look for. It may 
become a derelict, and I must see something on the face 
of the libel to show how the innocent possession comes 
to found a charge of theft. 



Present, 

The Lord Justice-General, 

Lords Dbas and Neaves. 

Jambs Steyenson, Appellant — A. Moncrieff. 

AGAINST 

John Melville, Respondent — Pattiaon. 

Appeal — Statutes 13th Geo. III. c. 54, 23d and 24th Vict. c. 90 
— Game — Qualification. — A complaint under the third section of 
the Act 13th Geo. III. c. 54, charging a person with having game 
in his possession, ' he not being qualified to kill game in Scotland, 
1 nor having leave from a qualified person to do so/ — sustained as 
relevant, although the person complained against had a licence un- 
der the Act 23d and 24th Yict. c. 90. 

On the 6th December 1862, the respondent, a labourer No. 7$. 
in Jedburgh, was charged before the Sheriff of Rox- ^SSm. 
burgh, on a complaint at the instance of the appellant High court. 
the Procurator-fiscal, proceeding on the third section of i£el* ' 
the Act 13th and 14th Geo. III. c. 54, and charged the Appeal 
respondent with contravention of that section, by ' hav- 
' ing two hares and a pheasant in his possession on the 



412 CASKS BEFORE THE HIGH COURT 

Ste^Li ' public road about two miles from Jedburgh, on the 
t>. MgiTine. € 13 th day of November last, the said John Melville not 
H ffi C S rt ' b^S qualified to kill game in Scotland, nor having 
1863. € leave from a qualified person to do so/ 
Appeal. The respondent objected to the relevancy of the com- 
plaint, in respect he had a license to kill game, and tbe 
Statute 23d and 24th Vict. c. 90, virtually repealed the 
third section of the Act of Geo. III. ; and he pleaded, 
as no qualification was now required for killing game, 
any person might purchase game from a licensed dealer, 
without incurring any penalty. The Sheriff-substitute 
found the complaint irrelevant, and dismissed it with 
expenses. 

The Procurator-Fiscal appealed on the following 
grounds : — 

' 1. Because the application clause for killing game, 
referred to in the 3d section of the Act 13th Geo. III., 
cap. 54, expressly provides, under schedule L, " that 
no person in possession of a certificate, should have 
right to use a